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TMI Blog2008 (12) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Licence on 1-4-1992 under Duty Exemption Scheme. As per the said Scheme, exporters are allowed to import inputs i.e., raw materials, components, consumables, packaging materials and mandatory spares required for the manufacture of a given finished product known as 'resultant product', without payment of import duty on such inputs, subject to the condition that a specified quantity of the resultant product should be exported within a specific time limit and the foreign exchange against such exports should be realised. The licence in question permitted the import of 81 MTs. of Cassia, subject to the condition that 1000 Kgs. of Cassia Oil should be exported. The appellant effected imports of 80.534 MTs. of Cassia against the Advance Licence. Duty free imports were allowed in terms of Customs Notification No. 159/90. 2. As a result of certain allegations made by the Directorate of Revenue Intelligence, a show cause notice, dated 7-9-1995, was issued to the appellant, alleging certain violations, and demanding duty of Rs. 38,91,449/-, by disallowing the duty exemption availed, for which the appellant sent a reply, pursuant to which, the second respondent, namely, Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re it to be so exercised." (ii) Sri Krishna v. Union of India, 1998 (104) E.L.T. 325 (Del.): "8.....The order of the Tribunal should show if the pleas raised before it, have any merit prima facie or not. If the appellant has such a prima facie strong case as is most likely to exonerate him from payment and still the Tribunal insists on the deposit of the amount it would amount to undue hardship." (iii) Mehsana Dist. Co.op. Milk P.U. Ltd. v. Union of India, 2003 (154) E.L.T. 347 (S.C.): "By the impugned order, the appellants have been directed to deposit an amount of Rs. 30 lakhs by way of pre-deposit. The reasoning given in support of such order is wholly unsatisfactory. The appellate authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate Authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of the same determined the quantum of deposit taking into consideration the financial hardship and other such relevant factors." (iv) Jay Engineering Works Ltd. v. Commissioner of Customs, Chennai, 2003 (162) E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of export products, but the same had only been kept as stock; hence, by no stretch of imagination, these duty exempt material, kept as stock, can be termed as replenished material and disposed of as per Customs Notification No. 159/90 and that the appellant is having sufficient means to pay the pre-deposit. In support of his contention, the learned Senior Central Government Standing Counsel has relied upon the following decisions : (i) Benara Valves Ltd. and Another v. Commissioner of Central Excise and Another, 2006 (204) E.L.T. 513 (S.C.) = 2006 (13) Supreme Court Cases 347 : "13. For a hardship to be 'undue', it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it." "14. The word "undue" adds something more than just hardship. It means, an excessive hardship or a hardship greater than the circumstances warrant." (ii) Monotosh Saha v. Special Director, Enforcement Directorate Another, 2008 (229) E.L.T. 492 (S.C.) = 2008 AIR SCW 6004 : "8. It is true that on merely establishing a prima fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interests of revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest 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." 8. The above Section would make it clear that in order to entertain any appeal against the decision or order relating to any duty and interest demanded in respect of goods, which are not under the control of the customs authorities, or any penalty levied, the person, preferring appeal, has to deposit with the proper officer duty and interest demanded or penalty levied, which is mandatory. However, in any particular case, if the Commissioner (Appeals) or the Appellate Tribunal is satisfied that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the said authorities may dispense with such deposit, subject to such conditions as they may deem fit to imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s very much disproportionate to it. Undue hardship is excessive hardship, that is not warranted by circumstances. In M/s. Benara Valves Ltd's case, the Apex Court observed that for a hardship to be 'undue', it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. It was also observed therein that the word "undue" adds something more than just hardship. It means, an excessive hardship or a hardship greater than the circumstances warrant. 11. In the case on hand, the capacity of the appellant to pay the amount having been noticed and in the absence of any financial burden, it cannot be construed that there is an undue hardship for the appellant to resort to claim waiver of pre-deposit. Therefore, the decisions, relied upon by the appellant, are not applicable to the present case. 12. The other aspect relates to imposition of condition to safeguard the interest of revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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