TaxTMI 
TaxTMI 
2014 (4) TMI 840
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....iginal appellants to deposit a sum of Rs. 10 crores only as pre deposit against the total demand of Rs. 279,27,61,029/under the Gujarat Sales Tax Act and demand of Rs.20,92,70,258/under Central Sales Tax Act. 2.1. Special Civil Application No.13567 of 2013 has been preferred by the petitioner herein original appellant ONGC challenging the impugned order passed by the learned Tribunal dated 31.7.2013 passed in Second Appeal No. 448 of 2013, by which, the learned Tribunal has directed the petitioneroriginal appellant to deposit a sum of Rs. 10 crores only as pre deposit, against the total demand of Rs.473,14,84,532/against the petitioner. 3.0. That the assessment order has been passed by the Assessing Officer for the assessment period 200809 under the Gujarat VAT Act as well as under the Central Sales Tax Act on 9.4.2013 and as a result thereof the total demand of Rs.279,27,61,029/has been raised under the Gujarat VAT Act and a demand of Rs.20,92,70,258/has been raised under the CST Act against the petitioners hereinoriginal appellants. Being aggrieved and dissatisfied with the assessment order dated 9.4.2013, the petitioners preferred appeals before the Joint Commissioner of C....
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....t of any amount towards predeposit. 5.0. Present petitions are opposed by Shri Jaymin Gandhi, learned Assistant Government Pleader on behalf of the respondent. It is submitted that as such against the total demand of approximately Rs. 800 crores (in all these appeals) as such the learned Tribunal has directed the petitionersoriginal appellants to deposit a total sum of Rs. 20 crores only, which in the facts and circumstances of the case cannot be said to be illegal and / or perverse. It is submitted that as such the petitioners hereinoriginal appellants have never pleaded any undue hardship and / or financial hardship, which are relevant consideration while deciding the application for waiver of predeposit. 5.1. Shri Gandhi, learned Assistant Government Pleader has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Mehsana District Cooperative Milk P.U. Ltd vs. Union of India reported in 2003 (154) ELT 347(SC) as well as decision of the Hon'ble Supreme Court in the case of Benara Valves Ltd vs. Commissioner of Central Excise reported in (2006) 13 SCC 347. He has also relied upon the decision of the Division Bench of this Court in the case of M/s. Exp....
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.... 6.2. Relying upon the decision of the Hon'ble Supreme Court in the case of M/s. Pennar Industries (supra) and Ravi Gupta (supra), learned advocate for the petitioner has submitted that as the petitioner is Public Sector Undertaking, there shall be a total waiver of predeposit. On considering the aforesaid decisions of the Hon'ble Supreme Court, it cannot be said that in the said decisions, the Hon'ble Supreme Court has laid down proposition of law that in respect of Public Sector Undertaking there shall be a complete waiver of predeposit. No such absolute proposition of law has been laid down by the Hon'ble Supreme Court in the said decisions. The decisions of the Hon'ble Supreme Court in the said cases are on facts and as stated above, no absolute proposition of law as sought to be canvassed on behalf of the petitioner has been laid down. 7.0. On the other hand, there is direct decision of the Hon'ble Supreme Court In the case of Benara Valves Ltd (supra), the Hon'ble Supreme Court has carved out following principles for staying or dispensing with predeposit thus: "6.Principles relating to grant of stay pending disposal of the matters before the concerned forums have been....
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....ded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue : Provided further that where an application is filed before the Commissioner (Appeals ) for dispensing with the deposit of duty 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 " 11.Two significant expressions used in the provisions are "undue hardship to such person" and safeguard the interest of revenue" Therefore, while dealing with the application twin requirements of considerations I.e. consideration of undue hardship aspect and imposition of conditions to safeguard 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....