TaxTMI 
TaxTMI 
2008 (12) TMI 215
X X X X Extracts X X X X
X X X X Extracts X X X X
....ree imports were allowed in terms of Customs Notification No. 159/90. 2. As a result of certain allegations made by the Directorate of Revenue Intelligence, a show cause notice, dated 7-9-1995, was issued to the appellant, alleging certain violations, and demanding duty of Rs. 38,91,449/-, by disallowing the duty exemption availed, for which the appellant sent a reply, pursuant to which, the second respondent, namely, Commissioner of Customs, by his Order-in-Original No. 13 of 1999, dated 15-3-1999, directed the appellant to pay Rs. 26,54,175/-, towards customs duty, in addition to a penalty of Rs. 2.50 lakhs on the firm and a personal penalty of Rs. 25,000/- on the Power of Attorney Holder of the appellant. The said order was challenged by the appellant in Appeal Nos. C/268 and 269 of 1999 before the first respondent, namely, Customs, Excise and Service Tax Appellate Tribunal (in short, "the Appellate Tribunal") along with Stay Application Nos. 151 and 152 of 1999. The Appellate Tribunal, by its Stay Order Nos. 89 and 90 of 2000, dated 1-2-2000, directed the appellant to deposit a sum of Rs. 13.00 lakhs within two months, observing that if such amount was deposited and complianc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....such order is wholly unsatisfactory. The appellate authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate Authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of the same determined the quantum of deposit taking into consideration the financial hardship and other such relevant factors." (iv) Jay Engineering Works Ltd. v. Commissioner of Customs, Chennai, 2003 (162) E.L.T. 680 (Tri.-Bang.): "The appellants had applied for the advance licence for the standard inputs as identified by the Standard Input/Output Norms against exports already made of ceiling fans. The imported goods viz., aluminium alloy having been actually used for manufacture of top and bottom covers and fans found to have been exported, the allegation of mis-declaration is not invocable." (v) Northern Doors (P) Ltd. v. Commissioner of Central Excise, Kanpur, 2005 (182) E.L.T. 450 (All.): "While deciding the application, Court must apply its mind as to whether the appellant has a st....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xcise and Another, 2006 (204) E.L.T. 513 (S.C.) = 2006 (13) Supreme Court Cases 347 : "13. For a hardship to be 'undue', it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it." "14. The word "undue" adds something more than just hardship. It means, an excessive hardship or a hardship greater than the circumstances warrant." (ii) Monotosh Saha v. Special Director, Enforcement Directorate & Another, 2008 (229) E.L.T. 492 (S.C.) = 2008 AIR SCW 6004 : "8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng." 8. The above Section would make it clear that in order to entertain any appeal against the decision or order relating to any duty and interest demanded in respect of goods, which are not under the control of the customs authorities, or any penalty levied, the person, preferring appeal, has to deposit with the proper officer duty and interest demanded or penalty levied, which is mandatory. However, in any particular case, if the Commissioner (Appeals) or the Appellate Tribunal is satisfied that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the said authorities may dispense with such deposit, subject to such conditions as they may deem fit to impose. 9. In this case, originally, in the show cause notice, duty was demanded at Rs. 38,91,449/-. Thereafter, on explanation by the appellant, the second respondent, namely, Commissioner of Customs, by his Order-in-Original No. 13 of 1999, dated 15-3-1999, restricted the demand to Rs. 26,54,175/-, towards customs duty, in addition to a penalty of Rs. 2.50 lakhs on the firm and a personal penalty of Rs. 25,000/- on the Power of Attorney Holder of the appellant, instead of Rs. 38,9....