TMI Blog1986 (6) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... herein, together with a penalty in a sum of Rs. 5,00,000/- as well as another sum of Rs. 23,27,519.36 alleged to have been demanded from the applicant by the Superintendent by his letter dated 29-12-1984, be dispensed with and the recovery stayed till the disposal of the appeal filed by the appellant. 2. The hearing of the application had taken a rather protracted course. (a) It was originally filed on or about 15-4-1985 when the duty required to be paid in terms of the order under appeal was not yet quantified, although the penalty was. The application was not in conformity with the requirements of R. 28 of the Customs, Excise Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 and when this was pointed out on 19-7-1985, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 23,27,519.36; (v) the reasons for dispensing with a prior deposit of the aforesaid amounts are, briefly, the crisis and recession in dye Stuffs industry consequent upon the crisis in the textile industry, the losses suffered by the applicant in the recent past as well as apprehended present and future losses as evidenced by the projected balance sheet for the year ending with 31-3-1985, paucity of financial resources and inadequate liquid money to make payment of any amount whatsoever, and finally, the closure of the applicant s business in case the amount demanded towards duty and penalty is required to be deposited; (vi) in the event the deposit of the amounts of duty and penalty demanded is dispensed with and their recovery s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the Collector of Central Excise was incompetent to have adjudicated the notice to show cause and the order he made in adjudication, is consequently, without jurisdiction; (d) in any view, the deposit of the huge amount demanded towards duty and penalty will, ex facie, cause undue hardship to the applicant and it may, accordingly, be dispensed with. 4. On a perusal of the papers and the submissions made, it would appear to us that - (a) admittedly, the liability was alleged to have arisen in the years 1978-79, 1979-80 and 1980-81; (b) the partnership that was dissolved with effect from 1-10-1982 was one constituted in terms of a partnership deed dated 12-7-1982, i.e., subsequent to the issue of the notice to show cause on 27-2-82. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the adjudication would depend to a large extent on the covenants inter se relating to the devolution of rights and liabilities upon the successor in interest each time a change in constitution occurs. Suffice it to observe from para 6 of the deed of dissolution that every liability of the short lived partnership, including Central Excise, whether existing or contingent, had devolved on the present applicant. All the quandom partners had converted their shares in the partnership into shareholdings in the applicant and one of them is a director of the applicant; (h) a conclusion in the premises upon the legality or validity of the adjudication order cannot, in any view, be reached on a cursory or prima facie view of one segment in iso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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