2009 (2) TMI 435 - HC - Customs

Stay - Financial Hardship - Petitioner stating that pre-deposit of Rs. 10 lakhs directed by Tribunal could not be paid due to financial hardships. Petitioner ought to have pleaded undue hardship in application seeking waiver of pre-deposit before Tribunal. Waiver application not containing such plea. Tribunal denied opportunity to consider statement of account placed before High Court. Statement that petitioner having only one bank account, mere assertion without evidence. Tribunal order containing finding that petitioner knowingly and intentionally involved in illegal diversion of duty free material and fraudulent activity. Reasoning in impugned order on service of hearing intimation sustainable. Writ petition dismissed.

Summary

Issues:
1. Challenge to order dismissing application for waiver of pre-deposit and grant of stay under Section 129E of the Customs Act, 1962.
2. Allegation of undue hardship due to pre-deposit requirement.
3. Lack of proper opportunity of being heard by the Adjudicating Authority.

Analysis:

Issue 1:
The petitioner challenged the order dismissing the application for waiver of pre-deposit and grant of stay under Section 129E of the Customs Act, 1962. The petitioner contended that pre-deposit of Rs. 10 lacs towards penalty would cause undue hardship, citing financial constraints. However, the Court found no merit in this contention as the application did not provide satisfactory proof of undue hardship. The petitioner failed to plead undue hardship in the application submitted to the Tribunal, which was a necessary requirement for waiver of pre-deposit. Additionally, the statement of account presented by the petitioner was not submitted to the Tribunal to support the alleged financial difficulty. The Tribunal had also concluded that the petitioner was involved in fraudulent activities, further weakening the petitioner's case for waiver.

Issue 2:
The petitioner argued that they were not given a proper and fair opportunity of being heard by the Adjudicating Authority. This contention was also raised before the Tribunal but was dismissed. The Tribunal had evidence to show that personal hearing intimations were dispatched as required by law, and there was no violation of principles of natural justice. The Court upheld the Tribunal's decision, stating that there was no error in the reasoning provided and found no merit in the petitioner's claim.

In conclusion, the Court dismissed the writ petition as it found no merit in the arguments presented by the petitioner regarding the waiver of pre-deposit and the alleged lack of proper opportunity to be heard. The Court upheld the Tribunal's decision and found no grounds to take a different view on the matter.