2003 (4) TMI 122

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....(6). 3.The brief fact is that in respect of capital goods imported by the petitioner, during November, 1995, the petitioner originally filed the returns under the provisions of the Income-tax Act claiming depreciation. In the original return filed for the year 1996-97, the petitioner claimed depreciation in respect of the imported capital goods for relevant financial year ended 31-3-1996. Subsequently, the petitioner filed a revised return on 26-6-1998, wherein the claim of depreciation has been withdrawn. In the meanwhile, the petitioner claimed Modvat credit during April, 1996 to July, 1996 and March, 1997. The Commissioner of Central Excise was of the view that the claim of depreciation under Income-tax Act would disentitle the petiti....

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....the matters have been remanded by the Tribunal by setting aside the order of the Commissioner. In the present case also such revised return has been filed before the Income-tax authorities and that has been accepted by the Tribunal, which is evident from Para 2 of the order of the Tribunal, which is impugned. If the appeal is directed to be taken for final disposal without the precondition of deposit the petitioner will also have the very same benefit of remittal order from the Tribunal. He further contended that the financial position of the petitioner is also not in appreciable position. For the assessment years 1996-1997 to 1999-2000 and continuously the petitioner is sustaining loss in a sum of Rs. 55 lakhs, 81 lakhs, 35 lakhs and 76 la....

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....appellant should be given an opportunity to produce the latest balance sheet and profit and loss account for the year ending  31-3-1996." 6.As seen from the judgment cited, it is evident that the consideration necessary for granting relief u/s 35F(4) is prima facie case and the financial position of the petitioner. The contention of the learned Counsel for the petitioner that the Tribunal in similar cases set aside the order of the Commissioner has not been refuted by the departmental Counsel and hence prima facie the petitioner has made out a case in his favour. The financial position of the petitioner is also not in a appreciable position as it was sustaining loss from the year 1996-97 to 1999-2000. Hence, I am of the view that an....