TMI Blog2009 (3) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... on 13-6-2006 it was directed that on payment of ₹ 1,00,00,000/- realization of the balance payment shall be stayed until further orders. It is accepted that the amount has been deposited. Considering the facts of the case, we direct that the Tribunal shall hear the appeal on merits without insisting on any further deposit in terms of Section 43(5). It is made clear that we have expressed no opinion on the merits of the case. It is for the appellant to satisfy the Tribunal the reason for which the declaration forms could not be produced earlier and if the Tribunal is satisfied with the genuineness of the stand it shall dispose of the appeals in accordance with law. - Civil Appeal No. 1965 of 2009, W.P. (C) No. 11822 of 2005 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the matter was fixed before the first Appellate Authority. Since the appellant failed to get any relief from the first Appellate Authority, it moved the Appellate Tribunal, Value Added Tax, Delhi (in short the 'Tribunal') in six appeals. Along with the appeal an application in terms of Section 43(5) of the Act was filed to dispense with the pre-deposit which is condition precedent for entertaining the appeal. At the first instance, the Tribunal after considering the rival stands, more particularly, that the declaration forms would be produced directed the payment of Rupees three crores in respect of the demands raised on the Act and the CST Act. Questioning the correctness of the order, appellant filed a Writ Petition before the Delh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, Writ Petition (C) No. 9446 of 2006 was filed which was dismissed by the impugned order on the ground that the appellant had not complied with the earlier order and, therefore, the Tribunal was left with no option but to dismiss the appeals as not entertainable. 4. In support of the appeal, learned counsel for the appellant submitted that the Tribunal and the High Court failed to appreciate that large number of declaration forms from various parties were to be collected and because of situation beyond control of the appellant, the forms could not be produced and if the forms are taken into account the ultimate liability would be not more than Rupees 15 lakhs. 5. Learned counsel for the respondents supported the judgment of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty on the appellant furnishing security in the prescribed manner for such amount as it may direct. The other category which is applicable to the present case relates to direction for deposit of smaller sum with or without security for such amount of tax or penalty which remains unpaid, as it may direct. In other words, the appellate authority has a discretion not to insist on payment as a condition precedent to entertain the appeal, for which the reasons have to be recorded in writing. The order in terms of Section 43(5) is essentially an order of stay. Three things are to be considered by the Tribunal while dealing with the application for dispensing with the pre-deposit. They are : the prima facie case, balance of convenience and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns' faith in the impartiality of public administration, interim relief can be given. 11. In the instant case the only plea which the appellant was pressing into service was that if declaration forms are produced the ultimate demand would not exceed Rs. 15 lakhs. As is rightly contended by learned counsel for the respondents, ample opportunity has been granted to the appellant to produce the declaration forms. That apparently has not been done. The appellant has produced certain records to submit that the declaration forms can be produced at the present juncture. While issuing notice on Special Leave Petition on 13-6-2006 it was directed that on payment of Rs. 1,00,00,000/- realization of the balance payment shall be stayed until further o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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