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2009 (8) TMI 1003

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..... h Diwan and Shri Deepak Bherumal Ramchandani and recovery thereof was stayed till disposal of the appeals. The applicants were directed to report compliance on 27-1-2009 failure of which should result in dismissal of all the appeals. 3. As regards the penalties imposed on the other applicants, namely, M/s. Sonu Synfab Pvt. Ltd., M/s. Sudharshan Texport Pvt. Ltd., M/s. Suncekowa Texport Pvt. Ltd., M/s. Pearl Agencies, M/s. Kakda Impex (I) Pvt. Ltd., Shri Ashok Kumar Sharma, Shri Govind Kakda, M/s. Shivarti Textiles Pvt. Ltd., M/s. V-Trans (I) Ltd. and Shri Suresh Synthetics, vide Para 28 of the said stay order, this Tribunal had directed each of them to make pre-deposit of 25% of the penalties within 8 weeks from the date of receipt of the said stay order and on such pre-deposit, pre-deposit was waived of the balance amounts of penalties and recovery thereof was stayed till disposal of the appeals. The applicants were also directed to report compliance on 27-1-09 failure of which should result in dismissal of all the appeals. 4. On 27-1-2009, these matters were listed for ascertaining compliance. However, none of the applicants remained present on the said date. There was also no pr .....

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..... olute right to use the said area at his own discretion without any interference whatsoever from the lessor. He said that the said assets and properties have been taken over by M/s. Asset Reconstruction Co. (India) Ltd. (M/s. ARCIL, for short) under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. In this connection, he referred to the Public Notice for sale dated 27-2-08. 9.1 He then submitted that the applicant made an application under Section 17 of the SARFAESI Act to the Debt Recovery Tribunal-III at Mumbai against M/s. ARCIL and M/s. Sonu Synthetics Ltd. praying for restraining the respondent No. 1 i.e. ARCIL from evicting the applicant from the property. But the said application was dismissed by the Debt Recovery Tribunal vide its order dated 26-8-2008. 9.2 He then referred to the letter dated 12-1-09 written by the applicant s Advocate to M/s. ARCIL enclosed with the application. By this letter, M/s. ARCIL was requested either to deposit the sum of Rs. 15 Crores as per the CESTAT Stay Order or to hand back the possession of the factory premises to his clients. However, in reply, vide letter dated 23-1-2009 ld. Advocate of .....

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..... 3-7-1999 with M/s. Sonu Synthetics Ltd. is a document created only to defeat the recovery of dues payable by the debtor. Therefore, the applicant has no right over the said property. He also submitted that during the investigation, the Department also found that neither the building premises nor the plant and machinery belong to the applicant. In this connection, he also took us through Para 17(l)(a) of the relevant show cause notice dated 23-1-2006. 10.1 Referring to its letter dated 12-1-2009 to M/s. ARCIL, Shri Mondal submitted that despite the fact the applicant has no right over the property, it has written this letter through its Advocate only to create another document to show that it is trying to comply with the pre-deposit condition. However, M/s. ARCIL has replied to this letter vide its Advocate s letter dated 23-1-2009, inter alia, stating that the applicant has no right, whatsoever, over the factory premises. 10.2 Shri Mondal then submitted that no new circumstance has arisen subsequent to the stay order dated 14-11-2008. The applicant has also not produced any other material in the form of Balance Sheet or Profit and Loss A/c. or any Bank statement showing t .....

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..... on its different Directors/Ex-Directors which totally come to Rs. 2.65 crores. We also find that vide stay order dated 14-11-2008 this Tribunal, after taking into consideration all the facts and circumstances of this case including the financial hardship, ordered the applicant to deposit a sum of Rs. 15 crores towards payment of duty within eight weeks from the date of receipt of the said stay order and waived pre-deposit of the balance duty and penalties imposed on it and its Directors. 12. Pleading financial hardship, Shri Nankani, ld. Advocate for M/s. SIPL has mainly relied upon the Lease Agreement dated 3-7-1999 for factory premises at MIDC Industrial Area, Murbad between M/s. SIPL and M/s. Sonu Synthetics Limited and Public Notice for sale of that property by M/s. ARCIL. We find that the applicant had produced this material earlier before the Tribunal claiming right over the said property. However, this claim has been rejected by the Debt Recovery Tribunal, Mumbai by a detailed order dated 26-8-2008 holding that the said lease agreement is a got up document to defeat the recovery of dues payable by the debtor. We find that after considering all these materials, this Tribunal .....

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..... r and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression Undue hardship is normally related to economic hardship. Undue which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be undue it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interest of revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interest of revenue. Therefore, the Tribunal while dealing with th .....

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..... the CESTAT Office on 24-1-2009, but the same were not accepted on the ground that the matter was listed before the Tribunal on 27-1-2009. On 27-1-2009, when he came to the Tribunal again, he found that before he reached the Tribunal, the matter was already decided. Hence, he could not hand over the applications. An Affidavit has been filed by him to this effect in respect of each of the applications. Shri Mondal, ld. Counsel for the Revenue strongly contested the correctness of the averment made in the applications and the Affidavits. He submitted that there are three Asstt. Registrars in the CESTAT, Mumbai. Shri Brijmohan Lalchand Kakda ought to have disclosed the name of the Asstt. Registrar, who refused to accept the applications on 24-1-2009. Without going into is controversy, we find that by the stay order dated 14-11-2008, the applicants were directed to deposit 25% of the penalties imposed on them. We find that the Commissioner has imposed penalty on them of Rs. 1 Lakh each except in the case of Shri Govind Kakda, on whom penalty imposed is Rs. 3 Lakhs. The amount of pre-deposit of 25% of ths said penalty amounts directed by the Tribunal cannot be said to be unreasonable. Th .....

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