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TMI Blog2014 (12) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. The decision of the Delhi High Court in the case of Sri Krishna v. Union of India (1998 (7) TMI 97 - HIGH COURT OF DELHI) also does not carry the case of the appellant any further inasmuch as in the facts of the said case, the petitioners therein were poor persons and were not in a position to deposit the amount as directed by the Tribunal and consequently would have been denied of the valuable right of their appeal being heard and decided on merits, whereas in the facts of the present case, it is not the case of the appellant that is not in a position to deposit the amount as directed by the Tribunal. Tribunal, while considering the appellant's application under section 129E of the Act, has exercised its discretion judicially. Under the circumstances, it is not possible to state that there is any legal infirmity in the impugned order so as to give rise to any question of law, much less a substantial question of law, so as to warrant interference - Decided against assesse. - TAX APPEAL NO. 942 of 2014 - - - Dated:- 4-9-2014 - MS. HARSHA DEVANI AND MS SONIA GOKANI, JJ. FOR THE APPELLANT : MR HARDIK P MODH, ADVOCATE JUDGEMENT Per: Harsha Devani: 1. By this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also preferred a stay application. By the impugned order, the stay application has been partly allowed by directing the appellant to deposit a sum of ₹ 20,00,000 /- as a condition for hearing and disposing of the appeal on merits and granting waiver of pre-deposit of the balance amount involved and staying the recovery thereof. 3. Mr. C. Harishankar, learned senior advocate with Mr. Hardik Modh, learned advocate for the appellant, assailed the impugned order by submitting that an identical issue had arisen for consideration before the Tribunal in the case of Tamil Nadu Newsprint Papers Ltd. v. Commissioner of Customs, Tuticorin, 2010 (253) E.L.T. 153 (Tri.- Chennai), which came to be decided in favour of the assessee and applies on all fours to the present case and hence, a clear case had been made out for total waiver of the pre-deposit. Such decision was also brought to the notice of the Tribunal on the occasion of the personal hearing, despite which the Tribunal had directed the appellant to pre-deposit a sum of ₹ 20,00,000 /- for hearing the appeal. It was urged that having regard to the fact that the issue involved in the present case stands covered by a decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y decisions of two Benches, the matter disclosed an arguable case as against a frivolous one and accordingly, found that there was a prima facie case for the petitioner. It was, accordingly, held that in exercising the discretion under the proviso to section 35F of the Central Excise Act, the Appellate Tribunal ought to have considered the same. The decision of the Delhi High Court in the case of Sri Krishna v. Union of India, 1998 (104) ELT 325 (Del.) was also cited wherein the court had held that the if the appellant had such a prima facie strong case and it was likely to be exonerated from payment, insistence of deposit of the amount would amount to undue hardship. The learned counsel submitted that in the light of the principles enunciated in the above decisions, there was no justification for the Tribunal to impose any pre-deposit as a condition precedent for hearing the appeal on merits and, as such, the impugned order passed by the Tribunal does give rise to substantial questions of law as proposed or as may be deemed fit by the court. 4. This court has considered the submissions advanced by the learned counsel for the appellant and has perused the impugned order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mean that the Tribunal is not justified in making an order of pre-deposit. Besides, as noticed above, having regard to the liability under the order-in-original, the amount directed to be paid by way of pre-deposit is only a small fraction thereof. 6. It is by now well settled that the three aspects to be focussed while dealing with an application under section 129E of the Act are: (a) prima facie case, (b) balance of convenience, and (c) irreparable loss. The Tribunal in the impugned order has expressed the view that the appellant has an arguable case and also that in order to hear and dispose of the appeal, the appellant needs to be put to some condition. A perusal of the stay application made by the appellant reveals that insofar as financial hardship is concerned all that is stated is The Applicant is pleading undue financial hardship in making pre-deposit of any amount in view of excellent prima facie case on merits . Thus, the only ground of financial hardship pleaded is not actual financial hardship but that the appellant has an excellent prima facie case on merits. In Benara Valves Ltd. v. CCE (supra) the Supreme Court has held that while exercising powers under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as required to safeguard the interests of the Revenue. 7. Having regard to the overall facts of this case, it is not possible to state that the impugned order does not conform to the principles enunciated in the above decision. As regards the decision of the Kerala High Court in Binani Zinc Ltd. v. Asst. Collector of Central Excise (supra) on which reliance has been placed on behalf of the appellant, the same turns upon the facts of the said case wherein though there was an arguable case, the Tribunal has directed pre-deposit of a huge amount as a condition precedent for the hearing of the appeal. In the present case, as noted hereinabove, the Tribunal had directed the appellant to pre-deposit a small fraction of the entire liability under the order-in-original and hence, the said decision would not be applicable to the facts of the present case. The decision of the Delhi High Court in the case of Sri Krishna v. Union of India (supra) also does not carry the case of the appellant any further inasmuch as in the facts of the said case, the petitioners therein were poor persons and were not in a position to deposit the amount as directed by the Tribunal and consequently woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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