TMI Blog1986 (2) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 19.6.1985 by which he directed- (i) confiscation of the goods in question under S. 111 (d), subject to redemption on payment of a fine of Rs. 20,000/- to be realised from a bond furnished by the applicant to secure and dispense with payment in cash as a condition precedent for the redemption, release and clearance of the goods ; (ii) enhancement of the value-of the goods for purposes of assessment from D.M. 225000) to D.M. 285660 ; and (iii) payment of the resultant increase in the quantum of duty. (b) the applicant had, along with the appeal, preferred an application, not for dispensing with the deposit of the additional duty demanded in terms of S. 129-E of the Customs Act, 1962, but for stay upon- (i) payment of the redemption fine of Rs. 20,000/- by the enforcement and realisation of the bond executed by the applicant; and (ii) payment of the additional duty in a sum of Rs. l,57,076/-pending the hearing of the appeal; (c) the applicant had filed and relied upon the balance sheets for the years 1981-82, 1982-83, and 1983-84, together with certificates from three banks. The certificates were- (i) from the Bank of India dated 9.9.1985 showing that the balanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 084.16 on 15-11-1985; (c) a certificate dated 19-11-85 from the American Express International Banking Corporation certifying the balance in the account of the applicant (A/c No. 1095) on 15-11-1985 to be a sum of Rs. 3,544.46 only ; and (d) a certificate dated 19-11-1985 from the Bank of Maharashtra certifying the balance of the credit in the account of the applicant (A/c No. 14606) to be Rs. 82.70 on 15-11-1985. 5. On 11-12-1985, the counsel of the applicant filed a copy of the latest provisional Balance Sheet for the year ending with 30-6-1985 signed by a Director of the applicant. 6. In the hearing before us on 26-12-1985, it was urged, relying on the rulings of the Allahabad High Court in 1985(20) E.L.T. 243 (June) (U.P. Lamination v. Union of India) and 1985(22) E.L.T. 301 (October) (Hari Fertilizers v. Union of India) that the earlier order may be modified in the light of the present financial situation of the applicant, as evidenced by the aforesaid Bank certificates. It was further submitted that the bond for payment of Rs. 78,538/- cannot be directed to be kept alive notwithstanding that a cash deposit of the said amount is additionally directed to be made. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cility is utilised to the full, ostensibly, for other purposes, the applicant could come up with an application for modification of our earlier order. Coupled with the failure to disclose the amount with the American Express International Banking Corporation and the expenditure said to be recurring and, hence, could have been anticipated, earlier, such a conclusion is not unjustified ; (d) S. 129E of the Act, prescribes a deposit of the amount of duty or penalty, as the case may be, as a condition precedent for the hearing of the appeal. The requirement of a deposit is relatable to the maintainability of the appeal itself. An appeal can even be rejected for failure to make the deposit unless it is dispensed with [AIR 1971 S.C. 2280- Navin Chandra v. The Central Board of Excise and Customs}. It may be dispensed with by the Collector (Appeals) or the Tribunal, as the case may be, if, in their opinion, each in an appeal before them, it would cause undue hardship to the Appellant subject to such conditions as to security that may safeguard the interests of the Revenue [1984 (16) E.L.T. 445 - Collector of Central Excise v. Crescent Dyes Chemicals; 1985(21) E.L.T. 558 -Modigas Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the confiscation in the first instance and if and when it is held to be illegal, such fine that might have been imposed and paid at the option of the assessee can always be refunded. Significantly, therefore, S. 129-E does not speak of dispensing with the redemption fine; (h) in the circumstances, it is incorrect to say that the goods were released on the execution of the bank guarantee and personal bond of the Director to secure payment of the differential duty. They were released, in fact, merely on a personal bond for the payment of the fine and the applicant had the benefit of such release without having to pay in hard cash any part of the fine. The execution of the bank guarantee and the personal bond of the Director were aliunde and intended to secure the differential duty that may ultimately require to be paid. (i) while it may be that the adjudicating officer thought fit to accept a personal bond for 50% of the differential duty, the Tribunal s direction to deposit that amount in cash, to secure the interests of the revenue cannot be assailed as more onerous or oppressive than the accommodation granted by the adjudication officer. The personal bond for securing 50% o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (viii) the High Court held that the allegations in the affidavit that the petitioner had no assets from which he could deposit 25% or could furnish a guarantee stood un-rebutted and further observed that the Tribunal obviously did not appreciate the import of the words undue hardship to the applicant occurring in the proviso to S. 35 F. Nor was there any finding in the order as to what would happen if the interim order is not granted in favour of the petitioner. It was further observed that in the absence of any finding on undue hardship, the exercise of discretion by the Tribunal is obviously erroneous. On the facts stated, the High Court was of the view that, in case an interim order is not granted, then the entire business which is on a small scale would come to a stand still and consequently the High Court thought it to be a fit case where the power under Article 226 could be exercised on the principles laid down by the Supreme Court in 1985 (19) E.L.T. 22 (S.C.). (k) while it may be that an interlocutory order may be modified to suit the requirements of any unforeseen or unanticipated change in the facts and circumstances of the case from those that prevailed at the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that may be caused to the applicant, did not result in the grant of a special leave as it should have been if our construction of the said provision was erroneous. Quite to the contrary, it does not appear that the attention of the Hon ble High Court [in 1985 (22) E.L.T. 301] was drawn to the decision of the Supreme Court in the Spencer case; (o) even assuming that the Tribunal was in error in failing to consider the existence of a prima facie case for the applicant earlier, the fact still remains that the mandatory deposit was dispensed with on the ground of undue hardship . Consideration of the existence of a prima facie case is, even in terms of the decision in 1985 (22) E.L.T. 301, relevant to a conclusion on undue hardship. Prima facie case has no relevance to such terms as may be imposed once undue hardship has been found in favour of the applicant. Our failure to consider the existence of a prima facie case can hardly be made, in the premises of a grievance of. 8. In the premises, we see no reason to modify our earlier order in any respect. The applicant should comply with it within three weeks from the communication of this order till which time, we extend the time for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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