9911796707
TMI Blog1994 (7) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant is suffering a huge financial hardship as various Banks have filed suits against the appellant and the appellant has not been able to get the bank guarantee from the banks in spite of best efforts by the appellant. He pleaded that the appellant is not in a position to deposit the amount and as such the stay order passed by the West Regional Bench, Bombay dated 11-1-1994 may be modified and the pre-deposit of the same may be dispensed with, and the appeal may be heard on merits at an early date. 5. Shri B.K. Singh, learned Senior Departmental Representative pleaded that while disposing of the stay application, the Bench had looked into the prima facie merits including financial hardship, and had passed the order accordingly, and as such the application for modification of the stay order should be rejected. In fairness, he argued that he does not object to the grant of extension of time for compliance of the terms of the Stay Order No. 35/94-NRB, dated 11-1-1994 out of which the present miscellaneous application emerges. In reply, learned Advocate Shri Anil Balani again requests for the modification of the stay order of the West Regional Bench. 6. We h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;Exempt materials imported against a licence under this scheme shall be utilised for the manufacture of the resultant products specified in the DEEC except where it is by way of replenishment. The replenishment would be on account of exports/supplies already made by utilising materials of the some characteristics and technical specifications in anticipation of import of duty exempt materials specified in the licence issued under this scheme. The exempt materials shall not be loaned, sold, or transferred or disposed of otherwise under any circumstances. In cases where the export obligation has been partially or fully met before making any import against the licence the manufacturer exporter after fulfilment of export obligation imposed against the licence may utilise the replenished materials for further export/domestic production and subject to actual user conditions. Similarly, the licensing authority may consider the request of registered exporters after fulfilment of export obligation for transfer of the replenishment materials to the supporting manufacturers concerned whose names appear in the DECC for further export/domestic production and subject to actual user conditions. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited in the account books and as such, no reliance can be placed on the account books." Hon'ble Supreme Court in the case of Spencer & Co. Ltd., Madras v. Collector of Central Excise which was followed by the Tribunal in the case of Sonodyne Television Company v. Collector of Central Excise, Calcutta reported in - 1985 (22) E.L.T. 582 (Tribunal) had observed as under :- "We are in agreement with the contention of the counsel for the petitioner that the expression `undue hardship' occurring in the proviso to Section 35F of the Central Excises and Salt Act, 1944, would include consideration, inter alia, of the aspect of liquidity possessed by the assessee. We are not inclined to take the view that the impugned order gives any indication that aspect has been completely ignored as was contended by counsel. With these observations, the special leave petition is dismissed." In the present case, the appellants have not filed up to date balance-sheets. In any case, if they had filed the same, the same would not have been of any relevance as the true position cannot be ascertained as the sale proceeds of the imported materials have not been credited in their account books. Accordingly, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification for the modification of the stay order. Shri Singh during the course of arguments had stated that he has got no objection for the extension of time for the compliance of the terms of the stay order dated 11-1-1994. Shri Anil Balani, learned Advocate prayed for extension of time. In the interest of justice, we grant two months time from today for complying with the terms of the stay order dated 11-1-1994. Learned Advocate during the course of arguments, had made a prayer for grant of out of turn hearing. The out of turn hearing can only be granted after complying with the provisions of Section 129E of Customs Act, 1962. The relevant provision of Section 129E of Customs Act, 1962 is reproduced below : "S. 129E. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the Customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty demanded or the penalty levied : Provided t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to appeal is a statutory right and it can be circumscribed by the conditions in the grant. The proviso to Section 129E gives a discretion to the authority to dispense with the obligation to deposit in case of `under hardships'. The discretion must be exercised on relevant materials, honestly, bona fide and objectively. In this case it is manifest that the order of the Tribunal was passed honestly, bona fide and having regard to the plea of undue hardship as canvassed by the Appellant. There are no error of jurisdiction or misdirection. In the facts and circumstances of the case and all the relevant factors, namely, the probability of the prima facie case of the appellant, the conduct of the parties, have been taken into consideration by the Tribunal. The purpose of the section is to act in terrorem to make the people comply with the provisions of law". In view of the above legal position, the appellant crosses the hurdle of Section 129E of the Customs Act, 1962, the appellant's request for out of turn hearing cannot be granted. It is open to the appellant to approach the Tribunal for out of turn hearing after complying with the terms of the stay order. 7. Since we have gra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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