TaxTMI 
TaxTMI 
2015 (11) TMI 1464
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....er Article 226 of the Constitution has called in question an order dated 27.01.2015 passed by the second respondent, Commissioner of Customs (Appeals) whereby, he has dismissed the appeal preferred by the petitioner against the order passed by the adjudicating authority, for non-compliance of pre-deposit as per stay order dated 01.01.2015. 4. The facts shorn off all unnecessary details are that the adjudicating authority passed an order dated 13.08.2013 against the petitioners holding that the machined rings for bearings manufactured and exported by the first petitioner (hereinafter referred to as "the petitioner") should be classified under Chapter Sub-heading 84829900 of the Schedule to the Customs Tariff Act, 1962; that the machined r....
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..../- towards duty and also ordered the second respondent to pre-deposit Rs. 10,00,000/- towards penalty in the respective appeals filed by them and to report compliance on or before 19.01.2015. It appears that the petitioners, thereafter, moved an application requesting the Commissioner (Appeals) to waive the pre-deposit. By an order dated 16.01.2015, the Commissioner (Appeals) found that the petitioners had not put forth any new or valid reasons which warrant reconsideration of the order dated 01.01.2015. He, accordingly, maintained the stay order and directed the first petitioner to pre-deposit Rs. 24,00,000/- and the second petitioner to pre-deposit Rs. 10,00,000/- towards penalty in respect of the appeals filed by them. Subsequently, by t....
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....ct pre-deposit of only Rs. 40,00,000/-, whereas in a similar case, the Commissioner (Appeals) in relation to duty demand of Rs. 48,03,301/-, had thought it fit to direct pre-deposit of Rs. 34,00,000/-. According to the learned counsel, the Commissioner (Appeals) was not justified in directing payment of such a huge amount of predeposit, when on a similar issue, the Tribunal had thought it fit to direct payment of a much lesser amount of pre-deposit. The attention of the fact was further drawn to the fact that subsequently, the appeal preferred by the petitioners before the Tribunal has been allowed by an order dated 29.10.2015 (a copy whereof was placed on the record) whereby the Tribunal has been held that the machined rings for bearing/ge....
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....y much disproportionate to the amount of pre-deposit ordered to be paid by the Tribunal in a similar set of facts. 7. Opposing the petition, Mrs. V. D. Nanavati, learned standing counsel for the respondents submitted that the petitioners have approached this court against the order passed by the Commissioner of Customs (Appeals), against which, the petitioner has alternative statutory remedy under section 129DD of the Customs Act, 1962 by way of revision before the Central Government. It was urged that the petitioners have invoked writ jurisdiction of this court only after expiry of the period of limitation of three months from service of the impugned order to approach the Central Government in revision which is not permissible. It was s....
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....provisions are "undue hardship to such person" and "safeguard the interests 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 sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923) that under Indian conditions expression "Undue hardship" is normally related to eco....
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....ommissioner of Central Excise (supra). Besides, apart from the merits of the order of the Commissioner (Appeals), as pointed out by the learned counsel for the petitioners, the classification issue which is involved in the appeal before the Commissioner (Appeals) stands concluded by an order dated 29.10.2015 of the Appellate Tribunal in favour of the petitioners. Under the circumstances, the petitioners have a prima facie case for waiver of pre-deposit. 12. By an order dated 16.07.2015, this court had directed the petitioners to deposit Rs. 10,00,000/- with the original authority, that is, the respondent No.4 herein. In the opinion of this court, having regard to the order passed by the Tribunal on an identical issue as aforesaid, the am....