TaxTMI 
TaxTMI 
TaxTMI 
2007 (12) TMI 220
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....be noted that the total amount of penalty imposed was Rs. 10,00,00,000/-. The dispute relates to classification of the product imported by the appellant and consequential benefits claimed by it under various Notifications issued by the Director General of Foreign Trade. The customs authorities did not accept the stand of the appellant about its classification. The levy of penalty was challenged by way of appeal before the CESTAT. It was accompanied by an application seeking waiver of the penalty imposed by the Commissioner of Customs (in short the 'Commissioner'). 4. After hearing the parties, the CESTAT inter alia noted as follows : "The learned Advocate for the applicants contends in one hand that a letter of M/s. Indian Oil Corporation....
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.... also certifying the utilization and the return stream of nonene and heptene and not to naphtha. Considering the submission in this matter, prima facie we are of the view that the waiver granted of the condition by the DGFT is not applicable to the subject imports in this case. The other issues raised will have to be gone into in detail at the regular hearing. At this prima facie stage considering the merits and the financial position as also the fact that this is the second round, we would consider this case to be appropriate to direct the applicants to terms of pre-deposit requirement to be effected under Section 129E of the Customs Act, 1962. We would, therefore, direct the applicants to deposit Rs. 2,00,00,000/- (rupees two crores only....
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....r the assessment years 31st March, 2004, 31st March, 2005 and 31st March, 2006 respectively the figures of losses are Rs. 17.74 crores, Rs. 12.20 crores and Rs. 8.28 crores. It is stated that the financial position has become dismal and insistence on pre-deposit is by overlooking the financial sickness of the company. The imports in question were made during the period 1992 to 1997. There was lot of confusion and because of that dispute has arisen. Reference is made to certain communications of the DGFT and Indian Oil Corporation (in short IOC). 8. Learned counsel for the respondents on the other hand has submitted that there is no prima facie case and even if it is conceded for the sake of arguments that there is financial hardship, that ....
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....se Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act." 10. Principles relating to grant of stay pending disposal of the matters before the concerned forums 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. 11. 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 SC 61) and Assistant Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330). 12. It is true that on merely establishing a prima facie case, interim order of pro....
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....re in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded 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 interests of revenue." 14. Two significant expressions used in the 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 b....