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TMI Blog2018 (8) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Trade Tax Revision No. 59 of 2018 - - - Dated:- 1-8-2018 - Hon'ble Abdul Moin, J. For the Applicant : Neerav Chitravanshi For the Opposite Party : C.S.C. ORDER Heard learned counsel for petitioner and Sri Vishal Verma learned Standing Counsel appearing for respondent No.1 and 2. With the consent of the parties, the revision is being finally disposed of. The questions of law involved in this revision are as under:- (i) Whether the impugned order being Annexure 7 is not arbitrary and illegal and so is passed in casual manner without considering the facts and circumstances of the present case? (ii) Whether in the facts and under the circumstances of the case the impugned order staying the realization of disputed amount of penalty/demand to the tune of 65% stands justified even though the demand prima- facie reflects the arbitrary, illegal and conjectural approach? (iii) Whether in the facts and under the circumstances of the case, the penalty order passed without any finding as to the commission of offence or mens reas is bad in the eyes of law and thereby making the penalty order nonest? (iv) Whether in the facts and under the circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revisionist preferred Second Appeal under Section 57 of the Act before the Commercial Tax Tribunal bearing S.A. No.117/18. The Second Appellate Court namely Commercial Tax Appellate Tribunal vide judgment dated 6.7.2018 stayed 65% of the amount of penalty and demand of ₹ 23,83,165/-. Being aggrieved with the aforesaid orders, the present revision has been preferred. Learned counsel for the revisionist has argued that the first appeal has been entertained by the appellate court and as he has made out a strong prima facie case in his favour apart from his poor financial condition and the appellate court itself taking into consideration the aforesaid factors granted a stay of 50% of the penalty yet at the same time assigned no reasons as to why the remaining 50% was not being stayed vide order dated 1.6.2018. Even upon the appeal being preferred before the appellate court vide S.A. No.117 of 2018, the Second Appellate Court vide judgment and order dated 6.7.2018 although granted a stay of 65% of the penalty yet again no reasons were assigned as to why the balance 35% of the penalty was not being stayed. It is thus argued that this amounts to non exercise of power veste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard to the judgment of the Supreme Court in the case of Shiv Kumar Chadha v. Municipal Corporation of Delhi reported in (1993) 3 SCC 161. This was a judgment rendered by a Bench of three Hon'ble Judges, wherein, in paragraph 30 their Lordships observed as under:- .....[A] party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The court grants such relief according to the legal principles--ex debito justitiae. Before any such order is passed the court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him. In the case of Dalpat Kum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing compelling possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject-matter should be maintained in status-quo, an injunction would be issued. Thus, it opined that a court has to exercise its sound judicial discretion in granting or refusing the relief of ad-interim injunction pending the suit. The aforesaid observations were made in the context of refusal or grant of temporary injunction in a suit under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 but the principles enunciated therein have been applied to matters relating to grant or refuse to grant interim relief in proceedings other than suits also and there is no dispute in this regard. These observations of the Supreme Court should have been kept in mind by the Tribunal and the First Appellate Authority while passing the impugned order. A Bench of three Hon'ble Judges of the Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the parties have come to the court alleging prejudice, inconvenience or harm and that a prima facie case has been shown. There can be and there are no hard and fast rules. But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury. There is the question of the public interest. There are many such factors worthy of consideration. It wondered why in the case indirect taxation where the burden has already been passed on to the consumer, any interim relief should at all be given to the manufacturer, dealer and the like! It also referred to its own observation in Siliguri case(supra) that the Court has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed . The court further went on to observe as under:- Even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think that it was sufficient justification fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein a similar view has been taken. In Benara Valves Ltd. (supra) the Supreme Court observed that petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. It also observed in paragraph 9 of the judgment that it has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases without analysing factual scenario involved in a particular case. In nut shell the Sumnum Bonum of the decision is due and proper application of mind to the factual scenario involved in the case keeping in mind the principle of prima facie case, balance of convenience, irreparable injury and other relevant factors discussed hereinabove. The order should disclose such application of mind. Cryptic observations as have been made in the present case, which have been noted in the earlier part of the judgment, do not satisfy these requirements. The passing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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