TMI Blog1991 (10) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... the waiver of penalty of Rs. 1 lakh imposed on applicant, Sh. N.K. Chakraborty, Managing Director of M/s. Rotex Textile Mills and of Rs. 10,000/- on applicant, Sh. Raj an Nair who is an employee of the above-said applicant firm by the Collector of Central Excise, Bombay-111 in his order dated 29-6-1991. Sh. Hidayatulla, Sr. Counsel, appeared for M/s. Rotex Textile Mills and Sh. N.K. Chakraborty and Ms. Rangaswamy for the applicant, Sh. Rajan Nair. Shri Hidayatulla, Sr. Counsel, submitted that the applications are not being pressed on the aspect of prima facie case, but that they would plead undue financial hardship to the applicants in making the pre-deposit of the duty and penalty demanded. In this regard, the Sr. Counsel referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the applicants in this case are not seeking the waiver of pre-deposit on the grounds of prima facie case and in such a situation, the Tribunal will not be justified in granting the waiver purely based on the claim of undue financial hardship when no substantial claim on the basis of prima facie case is sought to be established. He relied upon the Delhi High Court decision in the case of Uptron Powertronics v. Collector of Central Excise reported in 1987 (28) E.L.T. 61 that for getting discretionary relief, the party has to show prima facie substance and then undue hardship and not the reverse. Regarding their financial situation, the Ld. S.D.R. pointed out that the balance-sheet shows that the current assets is around Rs. 64 lakh whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of prima facie case. The question is only whether on the basis of the evidence they have produced regarding their financial situation whether it is a fit case for exercising the decision under the proviso to Section 35F of Central Excises Salt Act, 1944 in waiving the pre-deposit of duty and penalty wholly or partially. In this context, the Tribunal in the case of Jaishree Insulators Ltd. v. Collector of Central Excise, Calcutta-11 reported in 1987 (28) E.L.T. 279, on a difference of opinion, resolved by the President of the Tribunal, had held that undue hardship under Section 35F of Central Excises Salt Act, is not confined to financial hardship but also extends to prima facie case together with the balance of convenience. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... receivable. In this decision, the Tribunal had also noted the Supreme Court decision in Application No. 332/84 in Appeal No. 693/84 of M/s. Spencers Co. Ltd., Madras v. Collector of Central Excise wherein the Supreme Court held that expression undue hardship occurring in Section 35F of Central Excises Salt Act, 1944 would include consideration, inter alia, of the aspect of liquidity possessed by the assessee. In the present case, examining this aspect, it is found that the applicants M/s. Rotex Textile Mills have income totaling to Rs.3.63 crores during the period ending 31-3-1991. An amount of Rs. 31.63 lakh is due to them from Sundry Debtors and the total Current Assets are more than their Current Liabilities as already pointed out by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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