TMI Blog2015 (11) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners, the classification issue which is involved in the appeal before the Commissioner (Appeals) stands concluded by an order dated 29.10.2015 of the Appellate Tribunal in favour of the petitioners. Under the circumstances, the petitioners have a prima facie case for waiver of pre-deposit. When the court has found merit in the case of the petitioners and the matter does not involve any disputed question of fact, there is no bar against this court exercising powers under Article 226 of the Constitution of India merely because of the existence of an alternative statutory remedy. Under the circumstances, this court, having already applied its mind to the merits of the case and the scope of the controversy being narrow, does not deem it fit to relegate the petitioners to avail of the alternative remedy under the statute. - relief granted - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 8509 of 2015 - - - Dated:- 5-11-2015 - MS. HARSHA DEVANI AND MR. A.G.URAIZEE, JJ. FOR THE PETITIONER : MR PARESH V SHETH, ADVOCATE FOR THE RESPONDENTS : MRS VD NANAVATI, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Mrs. V. D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercise of powers under section 129E of the Customs Act, 1962, ordered the first petitioner to pre-deposit ₹ 24,00,000/- towards duty and also ordered the second respondent to pre-deposit ₹ 10,00,000/- towards penalty in the respective appeals filed by them and to report compliance on or before 19.01.2015. It appears that the petitioners, thereafter, moved an application requesting the Commissioner (Appeals) to waive the pre-deposit. By an order dated 16.01.2015, the Commissioner (Appeals) found that the petitioners had not put forth any new or valid reasons which warrant reconsideration of the order dated 01.01.2015. He, accordingly, maintained the stay order and directed the first petitioner to pre-deposit ₹ 24,00,000/- and the second petitioner to pre-deposit ₹ 10,00,000/- towards penalty in respect of the appeals filed by them. Subsequently, by the impugned order dated 27.01.2015, the Commissioner (Appeals) dismissed the appeals on the ground of noncompliance of the orders of pre-deposit as per the stay order dated 01.01.2015 read with miscellaneous order dated 16.01.2015. Being aggrieved, the petitioners have filed the present petition. 6. Mr. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sit is required to be quashed and set aside. It was submitted that at the time of issuance of notice, this court had directed the petitioners to deposit ₹ 10,00,000/- with the original authority which can be treated as pre-deposit and in the light of the above order passed by the Tribunal without requiring the petitioner to pay any more amount by way of pre-deposit. It was, accordingly, urged that the petition deserves to be allowed. 6.1 The learned counsel also drew the attention of the court to the decision of the Supreme Court in the case of Benara Valves Ltd. v. Commissioner of Central Excise , 2006 (204) ELT 513 (SC) , for the proposition that undue hardship is normally related to economic hardship. Undue 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. It was submitted that the undue hardship is caused by the order passed by the Commissioner (Appeals) directing payment of pre-deposit which is very much disproportionate to the amount of pre-deposit ordered to be paid by the Tribunal in a similar set of facts. 7. Oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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. 13. 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. 14. The word undue adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 11. Examining the facts of the present case in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
