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TMI Blog2016 (5) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... er footing looking into the provision to section 21 of DRRBFI Act, 1993, and, in the Appellate Tribunal has erred in not considering that aspect of the matter including prima facie, merit of the case while passing the impugned order, therefore, the same cannot be sustained in the eye of law. - Decided in favour of petitioner - WRIT - C No. - 7244 of 2016 - - - Dated:- 2-3-2016 - RAN VIJAI SINGH, J. For the Petitioner :- Rajesh Kesharwani,Arun Kumar Gupta For the Respondent :- Ashish Agrawal,Sandeep Arora ORDER RAN VIJAI SINGH,J. Heard Sri A.K.Gupta along with Sri Rajesh Kesharwani, learned counsel for the petitioners and Sri Ashish Nigam holding brief of Sri Sandeep Arora, learned counsel for the respondent-bank. By means of the present writ petition the petitioners have prayed for issuing a writ of certiorari quashing the order dated 22.1.2016 passed by the Debt Recovery Appellate Tribunal, Allahabad (in short DRAT) in Appeal No. R-83/2015 (M/s Eastern Export House and another vs. Union of India) by which the Appellate Tribunal has required the petitioners to deposit 50% of the entire amount of loan as determined by the Debt Recovery Tribunal (in shor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment. It has also been stated that the Bank has received the entire payment of the exported goods and did not adjust the same in the loan account of the petitioners. The plea of fraud played by the bank upon the petitioner was also alleged. The Appellate Tribunal after noting the submission of the petitioners and taking note of the proviso to Section 21 of the DRRBFI Act, 1993 has observed that financial hardship and closure of business cannot be a ground for complete waiver of the entire prerequisite statutory amount. While assailing this order, Sri Gupta, learned counsel for the petitioners submitted that the Appellate Tribunal has erred in considering the prima facie, merit of the case and passed the impugned order. He further submitted that the merit of the case ought to have been considered while considering the application of waiver. In support of his submission, he has placed reliance upon the judgment of a Division Bench of this Court in ITC Limited vs. CC (Appeals) and CE (ELT 2005 (184) 347) and another judgment of leared Single Judge of this Court in Pole-ADS Advertising (P) Ltd. vs. State of U.P. and others (2006 NTN (Vol.30)- 105). Refuting the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation . - For the purposes of this section ??duty demanded?? shall include, ? (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder. Section 18 of the Act, 2002 reads as under: 18. Appeal to Appellate Tribunal (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal alongwith such fee, as may be prescribed to the Appellate Tribunal within thirty days from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce the amount of debt or to put conditions in order to safeguard the revenue. Neither under the Central Excise Act, 1944 nor under the Act, 2002 there is provision of complete waiver. The power of complete waiver has been conferred upon the Appellate Tribunal only under the DRRBFI Act, 1993. While conferring the absolute power of waiver, legislature must have been conscious in order to safeguard the interest of the borrower too, therefore, while exercising the power under section 21 of the DRRBFI Act, 1993 the appellate authority must have proceeded with caution taking note of the object and spirit of the proviso which talks about the complete waiver or reduction of the required statutory amount. In the Division Bench decision of this Court in ITC Limited (supra) following observation has been made: Similar view has been reiterated in Assistant Collector of Central Excise, Chandan Nagar Vs. Dunlop India Ltd. Ors., AIR 1985 SC 330; State of Madhya pradesh Vs. M/s. M.V. Vyavsaya Co., AIR 1997 SC 993; Upadhyay Co. Vs. State of U.P. Ors., (1999) 1 SCC 81, deprecating the tendency of the Courts granting stay of recovery by mere filing of the case as it exposes the impairme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. In view of the above, we are of the considered opinion that as the Appellate Authority has not addressed to itself any of the issues involved in the appeal rather has gone to the issue of financial hardship which was unwarranted and uncalled for in the fact situation of this case. The order impugned cannot be sustained in the eyes of law and we have no option but to allow this petition and set aside the order impugned. Following the aforesaid judgement learned Single Judge of this Court in Pole-ADS Advertising (P) Ltd.(supra) has also held that while considering the application of waiver prima facie, merit of the case has to be seen. Here in this case, as has been discussed above, apart from financial crunch and closure of the business for last many years the petitioners have also pleaded merit of the case including the Bank's own initiation for accepting the proposal of settlement for which the petitioners have deposited ₹ 4,50,000/-, the papers of which has been brought on record as Annexures 14 and 15 of the writ petition. From the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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