TMI Blog2012 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant Rep by: Shri K K Anand , Adv . Respondent Rep by: Shri R K Verma , SDR Per: Archana Wadhwa : Vide stay order No.1085-1086/2011-EX dt.27.9.11, the appellant was directed to deposit an amount of Rs.6 crore as condition of hearing of their appeal, out of total confirmed demand of Rs.28 crores . The said stay order was challenged by the appellant before Hon'ble High Court of Punjab and Haryana at Chandigarh, who vide its order dated 21.11.11, disposed of writ petition. It stands observed by Hon'ble High Court that the petitioner's property has been attached vide communication dated 12.8.10 and that he is not possessed of any means to make cash deposit, Hon'ble High Court observed that no such argument was raised before the Tribunal and as such they granted liberty to the petitioner to make an appropriate application before the Tribunal. 2. In terms of the above direction of Hon'ble High Court, the present modification application stands moved by the applicant/appellant. 3. The matter had earlier come up on record, when the learned SDR appearing for the Revenue was directed to seek comments by the appropriate authority. On matter being called today, learned SDR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attachment of the property by the Revenue should be ordered to be released so as to enable him to dispose the same and deposit Rs.6 crores as directed by the Tribunal. We find merits in the prayer of the applicant, the Revenue cannot be expected to retain property as also to have cash deposit of Rs.6 crores . The Tribunal having already considered that cash deposit of Rs.6 crores would be sufficient for the purpose of stay order, we direct the Revenue to release the property within a period four weeks from the date of receipt of this present order. We direct the appellant to deposit of Rs.6 crores within a period of four weeks thereafter so as to comply with the direction of the Tribunal. The Modification application is disposed of in the above terms. The compliance is to be reported on______________. (Pronounced in the open court on________________) Archana Wadhwa , Member (J) Mathew John, Member (T) 7. I have gone through the order recorded by Ld. Member (Judicial). Considering the facts of the case and the financial status of the applicant, I am of the view that there is a danger that the order recorded by Member (Judicial) will only help the applicants to get the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, if the notice of attachment is withdrawn in respect of the properties. The prayer is only that the case should be heard without any cash deposit. A similar situation was considered by the Hon High Court of Andhra Pradesh in the case of Sri Chaitanya Educational Committee-2011 (22) S.T.R. 135 (A.P.) , which decision was later upheld by the Hon Apex Court though with a lower amount of pre-deposit. Since there is concurrence of opinion that attached properties are not sufficient compliance with section 35F of the Central Excise Act, I do not want to expand on this issue. 12. There is an oral prayer that the attachment may be lifted so that the applicants can raise funds. But there was no undertaking during hearing that if attachment is lifted Rs. Six crores will be deposited. Such oral undertaking if given also cannot result in collection of the money. The order recorded by Member (Judicial) also does not put adequate conditions to ensure that on lifting of the attachment of all the four properties, Rs. six crores will be deposited. The sequence of events consequent to the order as recorded by Member (J) is likely to be release of properties, its alienation, no pre-deposit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies and disposing the properties and the stay order-does not conflict with the notice issued under Rule 4 of the said Rules. Elaboration of this issue does not serve any purpose in the facts and circumstances of the case and hence such elaboration is not being attempted. Presently terms of stay order is not complied with. So it has not taken effect. So there is no conflict between stay order and notice for attachment issued. 17. So I am of the view that Tribunal should order release of the properties only to the extent as is needed for complying with the order and the property should be alienated with the permission of proper officer as envisaged in rule 9 of the said Rules. Revoking the notice for all properties should be considered only after the order for pre-deposit is complied with. To this extent I differ from the order recorded by Member (Judicial). I am also of the view that since the stay order has not taken effect the Revenue should be allowed to complete the process of attachment and its sale to realize Rs. 6 crores . 18. At this stage I would like to bring to the notice of Revenue the fact that if they are relying on the powers under section 11DDA, the notice issued ..... X X X X Extracts X X X X X X X X Extracts X X X X
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