TMI Blog2013 (6) TMI 326X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal was not well within its jurisdiction while dismissing the stay application in view of the fact that entire goods seized are in the custody of the department. Since, petitioner is not in custody of the goods, therefore, asking him to deposit huge duty and penalty to maintain appeal would cause great hardship to the petitioner. Therefore, impugned order cannot be sustained in the eyes of law. - decided in favor of assessee. - CWP No. 15876 of 2011 - - - Dated:- 3-4-2012 - M.M. Kumar and Alok Singh, JJ. Shri Jagmohan Bansal, Advocate, for the Petitioner. Shri HPS Ghuman, Advocate, for the Respondent. JUDGMENT Petitioners have filed present writ petition assailing order dated 16-11-2009 passed by the Customs, Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners No. 2 and 3, namely, Kanchan Kumar Kaura and Mr. Mohan Lal Thapar, were directed to deposit an amount of Rs. 5,00,000/- each. Petitioner moved an application for modification of order dated 10-2-2006 stating that goods worth Rs. 5.07 crore are lying in the custody of the respondent, therefore, interest of the revenue is saved. However, it did not find favour with the learned Tribunal and modification application was dismissed by the Tribunal vide order dated 21-7-2006 and appeal was also dismissed on the ground of non-compliance of stay order. Petitioners preferred CWP No. 17304 of 2006 before this Court, however, same was dismissed by this Court vide order dated 2-11-2006; thereafter petitioners preferred SLP before Hon ble th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er this Chapter, the decision or order appealed against relates to any duty and interest 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 and interest demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory on the part of the Tribunal to take that factor into consideration in making the order of pre-deposit. Furthermore, while exercising its jurisdiction, the Tribunal was also required to apply its mind in regard to the question of undue hardship on the part of the appellants upon considering existence of a prima facie case. Merit of the case ordinarily should not otherwise be gone into unless the question on the face of it appears to be concluded. 9. In view of the above, we are of the considered view that Tribunal was not well within its jurisdiction while dismissing the stay application in view of the fact that entire goods seized are in the custody of the department. Since, petitioner is not in custody of the goods, therefore, aski ..... X X X X Extracts X X X X X X X X Extracts X X X X
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