TaxTMI 
TaxTMI 
2019 (2) TMI 613
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.... the light of section 129-E of Customs Act, 1952? (ii) Whether the finding recorded by the appellate Tribunal that the appellant is not in a position to deposit the amount in question is perverse in the state of evidence on record especially in view of the fact that the company was declared sick by BIFR?" 2. Relevant facts giving rise to said question of law briefly are that the Appellant, a company incorporated under the Companies Act, 1956 engaged in manufacturing of Colour Picture Tube (Chapter No.8540 of the schedule to Central Excise Tariff Act 1985) had set up a Unit under Electronic Hardware Technology Park (EHTP Unit) vide approval letter dated 21/08/2002 by the Department of Information and Technology, STPI Noida. The E....
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....view the facts and circumstances of the case, petition is disposed of with a short direction that the petitioner shall file fresh application before the authority, the same shall be decided by the authority keeping in view the provision of Section 129-E of the Act after giving opportunity of hearing to the petitioner. It is made clear that the petitioner is directed to move the application within a period of four weeks, till decision of the order, the interim order passed by this Court shall continue. With the aforesaid, petition stands disposed of." 6. On a fresh application preferred by the Appellant for modification of order dated 11/12/2009, seeking waiver of predeposit, the Tribunal passed the following order on 03....
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....es no appearance to explain, the appeal shall stand dismissed on the above date." 7. Consequent to non-compliance of order dated 03/03/2014, the Appeal stood dismissed on 02/04/2014. 8. In these fact situation, the substantial question of law referred supra arises for consideration. Section 129E of 1962 Act, envisages: "[129-E. Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.- The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal,- (i) under sub-section (1) of section 128, unless the appellant has deposited seven and a half per cent. of the duty in case where duty or duty and penalty are in dispute, or penalty, where such penalty....
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....consideration the circumstances as would cause hardship to the assessee subject to safeguard the interest of the revenue. 10. The plea raised by the Appellant invoking discretionary jurisdiction under Section 129-E of the 1944 Act was that "due to many financial and other problems their factory is closed and that it is sick industries and that the matter is BIFR, accordingly sought the exemption from pre-deposit. The Tribunal rejected the same. 11. Though it is submitted that the Tribunal grossly erred in dismissing the appeal for default of pre-deposit. However, no material is placed on record such as Bank Account. Though a balance-sheet was filed before the Tribunal. 12. The said balance-sheet, however, does not disclose the curr....
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....or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35-F of the Central Excise Act, 1944 does not fall under any of the abovementioned categories in Section 22 of the Sick Industries Act." 10."6. Principles relating to grant of stay pending disposal of the matters before the forums concerned have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially. 7. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653), M/s Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors. (AIR 1985 S....
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.... 12. As noted above there are two important expressions in [Section 129-E]. 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 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. 13. For a hardship to be 'undue' it must be ....