TaxTMI 
TaxTMI 
2011 (7) TMI 228
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.... a number of exporters. While so, based on certain intelligence reports, the officers of the second respondent had alleged that certain unscrupulous persons had floated fictitious firms and had exported various consignments, by grossly inflating the value, with a view to avail wrongful duty drawback. The officers of the second respondent had alleged that the petitioner firm had done some business, based on the wrongful instructions given by one K.Gunasekaran, without verifying the credentials of the exporters concerned. 4. The petitioner firm had filed shipping bills on behalf of 20 exporters. However, the goods in question had been confiscated and penalties had been imposed on the petitioner firm, under Section 114 (iii) and 117 of the Customs Act, 1962, based on the orders passed by the second respondent. Aggrieved by the Orders in original passed by the second respondent the petitioner firm had filed 20 appeals before the first respondent, along with the stay applications, seeking waiver of pre-deposit of penalty, pending disposal of the appeals. 5. Even though a number grounds had been raised on behalf of the petitioner for waiver of pre-deposit of penalty, ....
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....o accept. If a strong prima facie case is made out, the requirement of pre-deposit would have to be waived irrespective of financial capacity of the appellant. If the appellant were to make out an arguable case for appeal the pre-deposit might still be waived but on securing the interest of the Revenue. In the case of financial hardship pre-deposit the disputed duty and/or penalty and/or part thereof would have to be waived irrespective of the prima facie merits. ....... 29. Even though the aforesaid submissions with regard to the financial capacity of the appellants have been recorded by the respondent Tribunal, the Respondent Tribunal has cursorily recorded a finding that the contention of the appellants that they were not in a position to pay cannot be accepted. The Respondent Tribunal has further proceeded on the basis penalty of Rs.5,000/- (sic) is not excessive. The aforesaid findings are not supported by an reasons. The impugned order is thus in flagrant violation of the principles of natural justice, and liable to be set aside and quashed." 8.2. In Adinath Dyeing and Finishing Mills vs. Commr. of C.EX., Ludhiana [(2008(10) S.T.R. 97 (P and H)],....
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....th reference to the material placed before it, a prima facie case for grant of stay is made out or not and the balance of convenience lies in whose favor." 9. Per contra, the learned counsel appearing on behalf of the second respondent had submitted that the petitioner had not raised, specifically, the ground of 'financial hardship', as mentioned in Section 129E of the Customs Act, 1962. Further, no materials had been placed before the first respondent to substantiate the contentions raised on behalf of the petitioner. The application filed on behalf of the petitioner, for the waiver of pre-deposit of penalty, is bereft of facts and particulars. 10. In such circumstances, it is not open to the petitioner to allege that the first respondent had not considered the contentions raised on behalf of the petitioner and that the impugned order had been passed by the first respondent, without giving sufficient reasons. No documents had been filed on behalf of the petitioner to show the existence of 'financial hardship'. The waiver of pre-deposit of penalty is not automatic. Unless the petitioner shows that the conditions enshrined in Section 129 E of the Customs Act, 196....
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....d the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. Two significant expressions used in Section 35-F of the Central Excise Act, 1944, are "undue hardship to such person" and "safeguard the interests of revenue". Therefore, while dealing with the application twin requirements of considerations have to be kept in view The aspect of undue hardship 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. 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. For a hardship to be 'undue' it must be shown that the particu....