TMI Blog2014 (1) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... erim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given - 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 - Following decision in case of Benara Valves Ltd. [2006 (11) TMI 6 - SUPREME COURT OF INDIA] - However, extention of time make pre deposit grated - Decided against assessee. - SPECIAL CIVIL APPLICATION NO. 13925 of 2013 - - - Dated:- 12-9-2013 - M.R. SHAH AND MS. SONIA GOKANI, JJ. For the Appellant : Paresh V. Sheth JUDGMENT:- PER : M.R. Shah By way of this petition under Article 226 of the Constitution of India, the petitioner herein-original appellant has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 15.7.2013 issued on 16.7.2013, by which, the learned Tribunal has directed the petitioner herein-original appellant to deposit the amount of Rs. 20 lakh as pre-deposit. 2. The invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned advocate for the petitioner has vehemently submitted that learned Tribunal has materially erred in directing the petitioner to make deposit of Rs.20 lakhs as pre-deposit. It is submitted that number of submissions were made before the learned Tribunal on merits in support of the case of the petitioner that there should be a waiver of 100% of the liability under OIO, however learned Tribunal has not considered the submissions on merits in detail. It is submitted that as such all the submissions made on behalf of the petitioner, against the order of OIO has not considered by the Tribunal in detail and as such no findings are given by the learned Tribunal on the submissions which were made on behalf of the petitioner. 3.1 Shri Paresh Sheth, learned advocate for the petitioner has tried to make submissions on merits and on the legality and validity of the order in original passed by the Commissioner as if present petition is an appeal against the order in original passed by the Commissioner and / or appeal against the final order passed by the Tribunal. However, considering the fact that present petition is against the order passed by the learned Tribunal on pre-deposit, we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Division Bench of this Court in the case of Explosion Proof Electrical Control v. CCE C, Vapi 2012(2) GLR 1673 and in the said decision the Division Bench has considered the decision of the Hon'ble Supreme Court in the case of Mehsana District Co-operative Milk U.P. Ltd. v. Union of India 2003 (154) ELT 347 (SC) and considering the aforesaid decision of the Hon'ble Supreme Court it is observed that twin requirements at the time of directing pre-deposits under Section 35F are; (A) undue financial hardships of the party; (b) safeguarding interest of revenue. 7. In the case of Benara Valves Ltd. v. CCE [2007] 6 STT 13 (SC), the Hon'ble Supreme Court has carved out following principles for staying or dispensing with pre-deposit thus: 6. Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially. 7. The applicable principles have been set out succinctly in Silliguri Municipality v. Amalendu Das AIR 1984 SC 653 and Samarias TradingCo. (P.) Ltd. v. S. Samuel AIR 1985 SC 61 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing" 11. Two significant expressions used in the provisions are "undue hardship to such person" and safeguard the interest of revenue" Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35(f). 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 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 dispro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or waiver of pre-deposit, the Tribunal is required to consider the aforesaid principles carved out by the Hon'ble Supreme Court in the case of Benara Valves Ltd. (supra), more particularly, with respect to undue hardship / financial hardship any alleged and prima facie case for waiver of full amount of pre-deposit. If at this stage, any findings in detail are given by the Tribunal on merits, the Tribunal will be accused of pre-judging the appeals. Therefore, the contention on behalf of the petitioner that all the submissions made on behalf of the petitioner-original appellant on merits are not dealt with and considered in detail and there are no findings on merits and therefore, impugned order of pre-deposit of Rs.20 lakhs only is required to be quashed and set aside, cannot be accepted. Considering the impugned order passed by the learned Tribunal, we are of the opinion that learned Tribunal has passed the impugned order of pre-deposit of Rs.20 lakhs judiciously. As stated hereinabove, the petitioner herein-original appellant neither before the learned Tribunal nor even before this Court has pleaded any undue hardship and / or financial hardship, which are prime consideration, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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