9911796707
TMI Blog2008 (6) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... taking any coercive steps for recovery of the tax amount confirmed against the petitioner by Ext. P3 order. Briefly put, the case of the petitioner is as follows : Petitioner is a Malayalam Television News Channel engaged in Television Broadcasting services and hold Service Tax Registration under the Finance Act, 1994. According to petitioner, it is entitled to avail tax credit of nearly Rs. 85 Lakhs. However, petitioner came to be imposed with liability to pay out-put tax in a sum of nearly Rs. 40 Lakhs, overruling the claim of the petitioner for adjustment of the liability against the credit the petitioner has by way of the payment of tax. The claim of the petitioner came to be brushed aside. Petitioner immediately filed appeal. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following decisions : (1) Bhikhubhai Vithalabhai Patel and Others v. State of Gujarat and Another [(2008) 4 SCC 144]. (2) Dharamshala Suthra & Anr. v. Administrator, Municipal Committee & Anr. [JT 2008 (4) SC 571]. (3) Aravindakshan v. State of Kerala [2007 (3) KLT 440]. (4) Bongaigaon Refinery & Petrochem. Ltd. v. Collr. of C.Ex.(A), Calcutta [1994 (69) E.L.T. 193 (Cal.)]. (5) Mehsana Dist. Co-op. Milk P.U. Ltd. v. Union of India [2003 (154) E.L.T. 347 (S.C.)]. 3. Bhikhubhai Vithalabhai Patel and Others v. State of Gujarat and Another [(2008) 4 SCC 144] was not a case actually under the Central Excise Act. Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) SC 571], related to the disposal of a Writ Petition by the High Court without independently recording reasons and the Court emphasised the need for reasons. Aravindakshan v. State of Kerala [2007 (3) KLT 440] was a case of a Writ Petition challenging dismissal of an employee. The decision of the Calcutta High Court in Bongaigaon Refinery & Petrochem Ltd. v. Collr. of C. Ex. (A), Cal [1994 (69) E.L.T. 193 (Cal.)], no doubt, relates to the question of dispensation of pre-deposit. There, the learned Judge took the view that the establishment of a prima facie case itself suffices for the grant of an order of pre-deposit. The learned Judge took the view that undue hardship is not confined to financial hardship alone and that in the case of st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emsp;As noted above, there are two important expressions in Section 35F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver 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. 15. The other aspect relates to imposition of condition to safeguard the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaded financial hardship and also produced materials. Today, when the matter was argued, counsel for the respondents brought to my notice that neither the petitioner had specifically pleaded financial hardship, nor was any material produced. Counsel for petitioner also produced a Verified Petition producing a petition to dispense with the payment of duty. It reads in its substantial portion as follows : "3. The Statement of facts and Grounds stated in the appeal petition may be read as part of this Affidavit. The appellant is advised that there are prima facie good grounds for allowing the appeal. If the appeal is allowed, no amount will be due to the Department. If the appellant is compelled to pay the amount, as a condition preceden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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