TMI Blog2014 (3) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relatable to prima facie case can be perceived. According to us, it depends upon each and every individual case. Without laying down any exhaustive guidelines, we think that following will be useful for adjudicating the application for waiver of full deposit by the Commissioner as well as this Court - Commissioner has exercised his jurisdiction judiciously as we notice it is in the category of arguable case and the condition of pre-deposit of 50% of the duty demanded is not unjustified. We think that to meet the ends of justice, time granted by the learned Commissioner for depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudging prima facie case also as it will appear from following Supreme Court decisions. 1) Siliguri Municipality Others vs Amalendu Das Others reported in (1984) 2 SCC 436); 2) Samarias Trading Co. Pvt. Ltd., vs. S. Samuel Others (AIR 1985 SC 61); and 3) CCE vs. Dunlpop India Ltd., reported in (1985) (1) SCC260. Thereafter, the Apex Court in case of Benara Valves Ltd., vs. CCE reported in (2006) 13 SCC 347 noting aforesaid three decisions, while dealing with Section 35F of Central Excise Act, 1944 explained legal position as follows: 8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no legs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit with the adjudicating authority the duty 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 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 he or it may deem fit to impose so as to safeguard the interest of revenue : Provided further that where 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, de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The other aspect relates to imposition of condition to safeguard the interests of the 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 the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. It thus appears upon careful reading of above paragraph that if a litigant has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ull deposit. In view of the aforesaid discussion, we feel that the learned Commissioner has exercised his jurisdiction judiciously as we notice it is in the category of arguable case and the condition of pre-deposit of 50% of the duty demanded is not unjustified. We think that to meet the ends of justice, time granted by the learned Commissioner for depositing of the amount of pre-deposit should be extended. Accordingly, we extend the same for a period of one month from date of receipt of the copy of this order and if the pre-deposit is made, then appeal will be heard out in accordance with law within a period of one month thereafter. We keep all points open. We have not decided anything on the merits of the case. The writ petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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