TMI Blog1988 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... thout payment of duty was permitted. The petitioner objected on merits, as well as on the ground that the Customs Authorities had no jurisdiction to take proceedings for violation of the conditions of the import licence. They were supported in the latter contention by the judgment of a Single Judge of the High Court of Madras in W.P. Nos. 9578 and 11152 of 1985. 3. The Collector of Customs did not accept these contentions. He held the petitioner guilty of violation of the conditions of the import licence. Accordingly demand was made for an amount of Rs. 8,69,813/- by way of duty and for an amount of Rs. 50,000/- as penalty under Section 114 of the Customs Act, 52 of 1962 (the Act). A copy of the order imposing the duty and penalty is Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... btors and that they had a closing stock of Rs. 23.62 lakhs, to make out that insistence on deposit of the duty and penalty will cause undue hardship to them. 6. The Tribunal disposed of the application by the order Ext. P-3 dated 3-8-1987. The Tribunal did not attach importance to the fact that there was decision of the Madras High Court supporting the petitioner's case. The Tribunal did not find any discussion in the judgment, on the question of jurisdiction of the Customs Department. It was also noted that the said decision was pending in appeal before a Division Bench of that court. The Tribunal then went on to observe that "no opinion could be expressed in regard to the question of jurisdiction prima facie at this stage as the same wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der on C.M.P. No. 4422 of 1988. 10. It has to be stated that the Tribunal has not correctly appreciated the various relevant factors which ought to be considered in exercising the discretion under the proviso to Section 129E. One of the contentions raised by the petitioner was regarding the jurisdiction of the Customs Department to initiate such proceedings in relation to violation of the conditions of the import licence. In this plea, the petitioner was prima facie supported by the decision of the High Court of Madras. The fact that the Tribunal did not find much of discussion in the judgment will not belittle its value as the judgment of a High Court, supporting the petitioner's case. The further fact that an appeal is pending against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant that the discretion to dispense with the deposit should be exercised judiciously based on relevant factors and circumstances. Prima facie case is one such. That prima facie case is relevant in this context is the ratio of the decisions in Hari Fertilisers v. Union of India, 1985 (22) E.L.T. 301 (Allahabad), in re : American Refrigeration Co. Ltd., 1986 (23) E.L.T. 74 (Calcutta) and in Thampi v. Collector of Central Excise, 1987 (1) K.L.T. 562 of this court, all rendered under the analogous provisions of the Central Excises and Salt Act, 1944. 12. The appellant's financial circumstances undoubtedly constitute a relevant factor. The facts of this case as disclosed by the documents produced disclose that they did not have sufficient liq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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