TaxTMI 
TaxTMI 
2008 (12) TMI 350
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....alpractice and series of summons were issued and correspondences were exchanged aiming to verify factual position of availability of stock. On 26th April, 1996, the strong room was broken in presence of panch witnesses and no gold was found. The appellant made allegation that the gold has been taken away by the customs officers/MMTC officials by breaking open the strong room when the responsible persons of the appellant company were not present in the unit. A criminal complaint was filed against the appellant by MMTC before the appropriate court of Magistrate and the appellant/s was/were discharged by order dated 20th August, 1999, the relevant portion of which is as follows: "From the above discussion I find that the above gold was not entrusted to the accused but ownership of the gold had passed on to the accused for practical purposes. Even the delay in the export of gold ornaments does not appear to be because of the accused but the role of the officers of MMTC appears to be existent in creating this dispute. If MMTC levels the charge of breach of settlement and the agreement against the accused the case of compensation for that is already pending before the Arbitration. No,....
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....made themselves liable for penalty. The plea of financial hardships has to be considered with a lot of reservations. Prima facie, they are involved in fraudulent activities. No prima facie case of waiver of entire amounts of penalties has been made out by the appellant/s. 5. Taking the entire facts and circumstances into account, the Tribunal directed the appellant company to deposit a sum of Rs. 5,00,000/- within 8 weeks from that date, the director to deposit a sum of Rs. 1,00,000/- within 8 weeks from that date and to report compliance by 28th November, 2008. Subject to deposit of the amounts as above, the pre-deposit of balance amount of penalties are waived and recovery thereof stayed till disposal of the appeals. It is also made clear that in the event of failure to deposit the amounts as mentioned above, the appeal of the defaulting appellant shall stand dismissed without further notice to the concerned appellant. 6. The appellant has already deposited a sum of Rs. 1,00,000/- as pre-deposit for the Director but did not deposit Rs. 5,00,000/- for the company due to acute financial hardships and preferred this appeal. 7. According to Mr. U.N. Sharma, learned Senior co....
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.... or it may deem fit to impose so as to safeguard the interests of revenue: Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty and interest 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." 10. Therefore, no appeal can lie from such orders to the High Court. But according to us, such submission cannot be held to be justifiable when an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003, if the High Court is satisfied that the case involves a substantial question of law as per Section 130 of the Act. At least question No. B cannot be said to be not a question of law. Such Section 130 of the Act is required to be repealed w.e.f. 28th December, 2005 but no such repeal has been given effect to as yet, therefore, admittedly we are to be governed by such Section 130 of the Act. 11. According to us, the words, "every order passed in appeal" do not apparently exclude the jurisdiction of the ....
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....sing appropriate order on the question of pre-deposit, which are as follows: "18. To that extent the petitioner cited three judgments reported in 1995 (80) E.L.T. 12 (S.C.) (Pamwi Tissues Ltd. v. Collector of Central Excise), 1993 (64) E.L.T. 387 (All) (Kamal Bidi Factory v. CEGAT) and 1995 (77) E.L.T. 829 (Mad.) (Triton Valves Ltd. v. CEGAT) to establish that hardship of the company should be considered on the basis of appropriate parameter of the case. In the first case, the Supreme Court held that since the petitioner is a sick unit there cannot be any embargo on hearing the appeal without the deposit being made. So far as the second matter is concerned, that financial capacity of the assessee has to be ascertained and the Appellate Authority cannot act arbitrarily. In the third judgment it was considered on the basis of the paragraphs 18 and 19 of such same that the impact of having to secure a deposit of large number of amount is a factor of relevance in considering the question of hardship. The Tribunal has to avert the adverse impact of the requirement of the pre-deposit on the operation of the Petitioner No. 1 concerned. 19. The question of dispensation of pre-deposit....