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2009 (9) TMI 392

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..... Act, the doctrine of unjust enrichment would not apply. It is also pointed out that the said section refers only to the refund of duty and not the interest. In other words, it is submitted that the interest paid on the language of section itself would not be the subject matter of unjust enrichment. 4. On the other hand, the learned counsel for the respondents supports the order of the learned Tribunal. 5. We propose to consider the issue of pre deposit in this case, since recently a large number of matters are coming up before us from the orders passed by the Tribunal in the matter of pre deposit. The right to appeal is neither absolute nor ingredient of natural justice, principles of which must be followed in all judicial and quasi judicial adjudication. The right to appeal is statutory right and it can be circumscribed fulfilment of conditions, in the instant case pre-deposit. In considering the case for such deposit, three things are to be considered by the tribunal while dealing with the application for dispensing with the pre deposit. They are prima facie case, balance of convenience and irreparable loss. See Ravi Gupta v. Commissioner of Sales Tax, 2009 (237) E.L.T. 3 ( S.C .....

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..... f 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 public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases (supra) without analysing factual scenario involved in a particular case. 11. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Se .....

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..... term 'genuine' as per the New Collins Concise English Dictionary is defined as under: 'Genuine' means not fake or counterfeit, real, not pretending (not bogus or merely a ruse) For interpretation of the aforementioned provision, the principle of purposive construction should be resorted to. Levy of interest is statutory in nature, inter alia for re-compensating the revenue from loss suffered by non-deposit of tax by the assessee within the time specified there for. The said principle should also be applied for the purpose of determining as to whether any hardship had been caused or not. A genuine hardship would, inter alia, mean a genuine difficulty. That per se would not lead to a conclusion that a person having large assets would never be in difficulty as he can sell those assets and pay the amount of interest levied. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well-known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is conceded, has not been applied by the courts belo .....

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..... tively. 12. While considering undue hardship, balance-sheet of a company or of an individual may be one of the relevant factors. However, at the same time, the Courts cannot be oblivious of the state of economy and the need for companies to have sufficient liquidity to proceed with the business on industrial activity. Any burden by way of deposit of resources required to keep the business running may have effect on productivity as also on employment. No doubt, these are matters which a party approaching a Tribunal must be in a position to establish and cannot be based merely on whims or fancies. The economy therefore is another indicator which could be considered while applying the test of undue hardship. 13. Considering the law as stated above, a duty is cast on the tribunal after it has considered whether the prima facie case has been made out while considering the issue of balance of convenience and irreparable loss and injury to examine the undue hardship as now understood and explained by the Supreme Court in Benara Valves Ltd. (supra) and B.M. Malani (supra). It is no doubt true that while considering the issue of pre-deposit, the Tribunal has a discretion. The application .....

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