9911796707
TMI Blog1999 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner of Central Excise, Division-III, Noida calling upon the petitioner to show cause why not the credit availed by him be disallowed. The petitioner filed objection and after consideration of the same the Commissioner of Central Excise disallowed Modvat credit to the tune of Rs. 54,12,753/- out of which Rs. 84,474- debited by the parties were appropriated by the department and for the remaining Rs. 53,28,229/- the petitioner was directed to deposit the same forthwith. It was also ordered that if the amount is not paid within three months of the receipt of the order then the petitioner shall be liable to pay simple interest at the rate of 18 per cent per annum from the date immediately after expiry of the said period of thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar 1997- 98 showing loss of Rs. 72,000/- which has not been considered by the appellate authority. It is submitted that a Division Bench of this Court in M. C. Goel v. Union of India and Others, 1988 (35) E.L.T. 449 (Allahabad) has observed that the object underlying the proviso would, in our opinion, be really served where, on finding that the requirement to deposit the entire amount of the duty demanded or penalty levied would cause "undue hardship" to the appellant, the appellate authority takes a realistic view of the matter in determining the conditions which should be imposed upon the person for dispensing with the requirement of the deposit. It is submitted that in the instant case the authority below has not taken a realistic view o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied would cause undue hardship to such person, the Collector (Appeals) or as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of the revenue. On the basis of the said provisions Sri Gulati argued that the pre-condition for dispensing with the pre-condition of deposit of penalty imposed or credit disallowed is that the appellate authority should be of the opinion that deposit of the amount demanded would cause undue hardship to such person. It is submitted that there is no whisper in the stay application that the petitioner filed copy of the annual report and which has been filed with the present petition. Only this much was st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, we have found that the petitioner's banker had agreed to give a bank guarantee only on the conditions that the entire amount is deposited in cash by the petitioner with it. We have also found from the copy of the balance-sheet which the petitioner has appended with the first of the two writ petitions, that the entire assets of the petitioner firm is a little over Rs. 3 lakhs, while the cash in band is only amount Rs. 1000/- and odd. It is obvious that in this State of petitioner's financial condition, requiring the petitioner to furnish Bank guarantee for Rs. 4,50,000/- which, according to the communication of the Bank, could only be issued by it subject to deposit of the entire amount by the petitioner, coupled with the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of credit in question. The appellate authority while passing the impugned order has, of course, observed that attested photo quadruplicate copy of bill of entry is not useful for the purpose of allowing credit. Learned Counsel submits that the Tribunal has allowed Modvat credit on the basis of the attested quadruplicate copy of bill of entry. In my view, that is a question of merit to be decided in appeal. Any observation in this regard may affect the parties at the time of disposal of the appeal. 12.However, considering the amount involved and the nature of goods, I am of the view that the authority below ought to have given an opportunity to the petitioner before passing the impugned order to produce material in support of its claim th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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