TaxTMI 
TaxTMI 
2008 (7) TMI 369
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....s be pleased to issue a writ of or in the nature of mandamus or a writ of or in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the Tribunal's orders dated 14 to 26-9-2007 and 18-12-2007 at ANNEXURE G and ANNEXURE L respectively and be further pleased to direct the Tribunal to hear the petitioner's appeal without insisting upon a pre-deposit." 2. The respondents had issued a show cause notice against the petitioner and Garden Silk alleging that they were related persons and that the petitioner had processed 10,24,92,878 L.Mt. of fabric for Garden Silk on job work basis during 1993-98, hence the petitioner should have paid duty in terms of the wholesale price at which the yarn and proc....
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....e the first directors (i. e. at the time of SPL's inception), SPL earned profit from transaction of yarn through GSML etc. and came to the conclusion that they are related persons. (4.3) The Commissioner has also taken note of the fact that GSML has spent sizable amount of money on developing designs and supplying the same to SPL without any monetary considerations and came to the conclusion that there are indications of extraordinary relationship between SPL and GSML. (4.4) Commissioner also has held that SPL have not disclosed the nature of relationship between them and GSML and also GSML have not disclosed the relationship with SPL and felt it is a fit for invoking extended time limit. (5) Prima facie, the valuation adopted by t....
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....nt company is under BIFR and they are not in a position to mobilize the funds to comply with the stay order. We have given detailed reasons in the stay order dated 26-9-07 and held that the applicants do not have a prima facie case in their favour. Accordingly, and after taking into account the financial hardship pleaded by them, we directed them to deposit a sum of Rs. 4 crores against the total demand of duty amounting to about Rs. 21.3 crores besides penalty and interest. Pre-deposit is envisaged before filing appeal and waiver of pre-deposit has to take into account the revenue interests as well. We do not find any merit in the application." 4. The learned Counsel for the petitioner assailed the impugned orders mainly on the ground t....
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....ioner as well as the material on record before directing the petitioner to deposit only a fraction of the duty amount. It was submitted that under the provisions of Section 35F of the Central Excise Act, 1944 (the Act), discretionary powers are vested in the Tribunal. While examining the validity of the order of the Tribunal, all that has to be seen is as to whether while exercising discretion, the Tribunal has considered the factors laid down in Section 35F of the Act. It was submitted that the impugned orders passed by the Tribunal clearly show that all the factors envisaged under section 35F of the Act have been taken into consideration and that the Tribunal has applied its mind to all the submissions advanced on behalf of the petitioner....
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.... to while assigning reasons, does not lead to an inference that the Tribunal has not effectively considered the submissions advanced on behalf of the petitioner. Hence, the contention that the Tribunal has not addressed itself to the issue regarding the petitioner being registered as a sick unit with the BIFR does not merit acceptance. 7. While considering an application under section 35F of the Act, the Tribunal is required to keep in mind twin requirements viz, undue hardship to the applicant and imposition of conditions to safeguard the interest of Revenue. On the facts of the present case, it is apparent that the Tribunal has considered both the aforesaid aspects while directing the petitioner to deposit a sum of Rs. 4 crores. 8. ....
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....pt the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against t industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Act, 1944 does ....