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TMI Blog2019 (2) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground of noncompliance of stay order and the finding arrived by the Appellate Tribunal, as would warrant any interference. Appeal dismissed - decided against appellant. - CEA-3-2014 - - - Dated:- 1-2-2019 - Sanjay Yadav And Vivek Agarwal JJ. For the Petitioner : Shri Prashant Sharma, learned counsel For the Respondent : Shri Praveen Surange, learned counsel ORDER The substantial question of law which arises for consideration in this Appeal under Section 129E of the Customs Act, 1962 are: (i) Whether the appellate Tribunal committed error of law in dismissing the appeal on the ground of non compliance of stay order despite direction issued by this Court for reconsideration of the stay application in the light of section 129-E of Customs Act, 1952? (ii) Whether the finding recorded by the appellate Tribunal that the appellant is not in a position to deposit the amount in question is perverse in the state of evidence on record especially in view of the fact that the company was declared sick by BIFR? 2. Relevant facts giving rise to said question of law briefly are that the Appellant, a company incorporated under the Companies Act, 1956 en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellant for modification of order dated 11/12/2009, seeking waiver of predeposit, the Tribunal passed the following order on 03/03/2014: The only plea of the appellant is that the Tribunal has not considered financial hardship. In para 4 of the order of the Tribunal, it was categorically recorded that financial hardship was taken into consideration by the Bench while passing the stay order dated 27.11.2009. In para 2 of the order the manner how Revenue has been prejudiced is recorded. Considering the plea of debonding and also deposit of ₹ 19.00 Lakhs at the time of debonding against the duty of ₹ 69,22,218/- forgone by the state; there was direction of predeposit of ₹ 10.00 Lakhs only. The appellant has already enjoyed the benefit of the interim order dated 27.11.2009 for four years and three months. There is no further necessity to be lenient to this appellant to allow the abuse the process of law whose only plea is that the appellant has closed its factory. Financial hardship is not criteria for any leniency under fiscal statute as has been held by Apex Court in the case of Empire Industries Ltd. vs. Union of India reported in 1985(20) ELT 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order imposing duty, interest or penalty. An exception, however, is caused vide proviso to Section 129-E which vests in the Appellate Authority the discretion any power, based on relevant material, to dispense with or as he deems fit by taking into consideration the circumstances as would cause hardship to the assessee subject to safeguard the interest of the revenue. 10. The plea raised by the Appellant invoking discretionary jurisdiction under Section 129-E of the 1944 Act was that due to many financial and other problems their factory is closed and that it is sick industries and that the matter is BIFR, accordingly sought the exemption from pre-deposit. The Tribunal rejected the same. 11. Though it is submitted that the Tribunal grossly erred in dismissing the appeal for default of pre-deposit. However, no material is placed on record such as Bank Account. Though a balance-sheet was filed before the Tribunal. 12. The said balance-sheet, however, does not disclose the current/saving Bank Account status of the appellant. 13. As to what should be parameters to exercise the discretion of waiver of pre-deposit, it is held in Indu Nissan Oxo Chemicals Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive part of the demand. Petitions for stay should not be disposed of in a routine matter 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. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's faith in the impartiality of public administration, interim relief can be given. 12. 11. Two significant expressions used in the provisions are 'undue hardship to such person' and 'safeguard the interests of revenue'. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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