TMI Blog2014 (4) TMI 840X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view - There are two important expressions in Section 35(f) - One is undue hardship - This is a matter within the special knowledge of the applicant for waiver and has to be established by him - A mere assertion about undue hardship would not be sufficient - It was noted by this Court in S. Vasudeva Vs State of Karnataka and Ors. [1993 (3) TMI 350 - SUPREME COURT OF INDIA] that under Indian conditions expression “Undue hardship” is normally related to economic hardship - “Undue” which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it - Undue hardship is caused when the hardship is not warranted by the circumstances – Relying upon Mehsana District Cooperative Milk P.U. Ltd. vs. Union of Indina [2003 (3) TMI 113 - SUPREME COURT OF INDIA] - The conditions as to predeposit in appeal can be waived mainly on the ground of undue hardship/ financial hardships - Moreover, when the petitioners have neither pleaded any undue hardship and / or financial hardship it cannot be said that the learned Tribunal has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said appeals have been dismissed by the Joint Commissioner of Commercial Tax vide order dated 2.5.2013. Feeling aggrieved and dissatisfied with the said order dated 2.5.2013, the petitioners have preferred Second Appeal Nos. 427 of 2013 and 428 of 2013. In the said appeals, the petitioner original appellant submitted the application for stay / waiver of predeposit and by impugned order dated 29.7.2013, the learned Tribunal has directed the petitioner hereinoriginal appellant to deposit a sum of Rs. 10 crores only as predeposit and on such deposit, the department is directed to not to take any coercive action against the appellant for recovery of outstanding demand. 3.1. Similar order has been passed by the learned Tribunal in Second Appeal No. 448 of 2013. Against the impugned orders of predeposit of Rs.10 crores each, the petitioners herein original appellantONGC have preferred present Special Civil Applications under Article 226 of the Constitution of India. 4.0. Shri Akshat Khare, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that in the facts and circumstances of the case, the learned Tribunal has materially erred in directing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control And Ors vs. Commissioner of Central Excise and Customs Vapi reported in 2012(2) GLR 1673 as well as recent unreported decision of this Court in the case of Aircomp Enterprise vs. Union of India Others reported in Special Civil Application No.13925 of 2013 in support of his prayer to dismiss the present petition. 6.0. Heard learned advocates for the respective parties at length. At the outset, it is required to be noted that by impugned orders, the learned Tribunal has directed the petitioners hereinoriginal appellants to deposit a total sum of Rs.20 crores against the total approximately demand of Rs.800 crores, as predeposit and on such deposit further recovery of demand has been stayed. At the outset, it is required to be noted that as such the petitioners have never pleaded any undue hardship and / or any financial hardship. When the present petitions were preferred it was the case on behalf of the petitioners that the identical question with respect to earlier assessment years is pending before the Tribunal and the Tribunal had heard the appeals and the issue is recurring in nature, the Tribunal may be directed to hear the appeals without insisting for predeposit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is to be noted that in such matters though discretion is available, the same has to be exercised judicially. 7.The applicable principles have been set out succinctly in Silliguri Municipality and Ors. Vs. Amalendu Das and Ors. (AIR 1984 SC 653) and M/s. Samarias Trading Co.Pvt.Ltd. Vs. Ors. (AIR 1985 SC 61) and Assistant Collector of Central Excise V. Dunlop India Ltd. (AIR 1985 SC 330). 8.It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in S. Vasudeva Vs State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression Undue hardship is normally related to economic hardship. Undue which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 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. 17.The Apex Court in the case of Mehsana District Cooperative Milk P.U. Ltd. vs. Union of Indina reported in 2003 (154)E.L.T. 347(S.C) also considered this issue in the following manner: 2. The issue here relates to the order passed by the Commissioner (Appeal), Central Excise and Customs under Section 35F of the Central Excise Act, 1944. By the impugned order, the appellants have been directed to deposit an amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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