JUDGMENT. (Hon ble Arijit Pasayat, J.) Leave granted.

Similar documents
UNDUE HARDSHIP. (S. Jaikumar & G. Natarajan, Advocates)

* IN THE HIGH COURT OF DELHI AT NEW DELHI. + ARB.A. 5/2015 & IA 2340/2015 (for stay) versus

Direct Tax (Article) Power of ITAT to stay the penalty proceedings where quantum proceeding is pending before it

IN THE GAUHATI HIGH COURT

order imposes the following restrictions on the petitioner:-

CHAPTER 13 DEMAND NOTICE/SHOW CAUSE NOTICE, ADJUDICATION, INTEREST, PENALTY, CONFISCATION, SEIZURE, DUTY PAYMENT UNDER PROTEST PART I

IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN. Writ Petition Nos /2017 (T-IT)

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI REHABILITATION MINISTRY EMPLOYEES CO-OPERATIVE. versus

640 KNOWLEDGE RESOURCE [Vol. 49 First of all let us go through this amended Section 35F of Central Excise Act, It reads as under: Section 35F. T

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : EXCISE ACT, 1944 CENTRAL EXCISE ACT CASE NOS. 48/2012 & 49/2012 Date of decision: 2nd August, 2013

FINAL ORDER NO /2014 APPEAL NO. E/58979 OF 2013 SEPTEMBER 3, 2014

IN THE HIGH COURT OF KARNATAKA AT BENGALURU BEFORE THE HON BLE MR.JUSTICE S. ABDUL NAZEER WRIT PETITION NOS.913 TO 914/2015 (GM-RES)

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CENTRAL EXCISE APPEAL NO.59 OF 2011

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (T) No of 2013 with W.P. (T) No of 2013

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL WRIT JURISDICTION I.A NO OF 2012 WRIT PETITION (CIVIL) NO. OF 2012 ASSAM SANMILITA MAHASANGHA & ORS

IN THE HIGH COURT OF KARNATAKA AT BENGALURU PRESENT THE HON BLE MR.JUSTICE VINEET SARAN AND THE HON BLE MRS.JUSTICE S SUJATHA

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L)NO OF 2014

IN THE HIGH COURT OF DELHI AT NEW DELHI. CRL M C 656/2005 and CRL M A 2217/2005. Reserved on: January 17, Date of decision: February 8, 2008

Company Appeal (AT) (Insolvency) No. 33 of Alongwith Company Appeal (AT) (Insolvency) No. 34 of 2017

Appeal, Review and Settlement of Cases

CENTRAL EXCISE CIRCULAR

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD Special Civil Application No of 2015 AUTOMARK INDUSTRIES (I) LTD Vs STATE OF GUJARAT AND 3 Harsha Deva

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : ELECTRICITY ACT, 2003 Date of decision: 19th April, 2011 W.P.(C) 8647/2007

IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION NO /2013 (T-TAR)

CM No.22555/2015 (Exemption) 3. Allowed, subject to all just exceptions. 4. The application stands disposed of.

WRIT PETITION (C) NO. 233O OF 2006

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INCOME TAX MATTER. Judgment delivered on: WP (C) 4642/2008

-: 1 :- IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Crl. Rev. P. No. 5 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS (Special Original Jurisdiction) W.P. No. of 2018

2014-TIOL-1934-CESTAT-DEL

* IN THE HIGH COURT OF DELHI AT NEW DELHI. versus MR. JUSTICE S. RAVINDRA BHAT. 1. The question of law which arises for decision in this appeal is:

BEFORE THE NATIONAL GREEN TRIBUNAL, NEW DELHI (PRINCIPAL BENCH)

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : INCOME TAX ACT W.P.(C) 7933/2010. Date of Decision : 16th February, 2012.

IN THE HIGH COURT OF DELHI AT NEW DELHI COMPANY JURISDICTION. CCP (Co.) No. 8 of 2008 COMPANY PETITION NO. 215 OF 2005

KSJ Metal Impex (P.) Ltd. v. Under Secretary (Cus.), M.F. (D.R.) [2013] 40 taxmann.com 199 (Mad.) (para

IN THE HIGH COURT OF BOMBAY AT GOA

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

* IN THE HIGH COURT OF DELHI AT NEW DELHI. % Judgment pronounced on: 4 th January, versus CORAM: HON'BLE MR.JUSTICE MANMOHAN SINGH

Present: Mr. Arun Kathpalia, Senior Advocate assisted by Mr. Rudreshwar Singh, Mr. Swapnil Gupta, Mr. Ujjal Banerjee and Ms. Ankita Sinha, Advocates

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : ARBITRATION AND CONCILIATION ACT, 1996 ARB.P. 63/2012 Date of Decision : December 06, 2012

IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON BLE MR.JUSTICE B.S.PATIL. W.P.Nos.50029/2013 & 51586/2013 (CS-RES)

IN THE HIGH COURT OF DELHI AT NEW DELHI. 1. Writ Petition (Civil) No of Judgment reserved on: August 30, 2007

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL COMPANY APPELLATE JURISDICTION. Company Appeal (AT) (Insolvency) No. 213 of 2017

THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI. M.A. No. 35 of 2013(SZ) in Appeal No. 31 of 2012

GST/ IDT Case Law Update 4

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND ARUNACHAL PRADESH)

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL COMPANY APPELLATE JURISDICTION. Company Appeal (AT) (Insolvency) No. 181 of 2017

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

2 entered into an agreement, which is called a Conducting Agreement, with the respondent on In terms of the agreement, the appellant was r

IN THE HIGH COURT OF KARNATAKA, BENGALURU BEFORE. THE HON'BLE Dr.JUSTICE VINEET KOTHARI. CA No.969/2015 IN COP NO.84/2012 BETWEEN:

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION CONTEMPT PETITION (CRIMINAL) NO. 2/2012 IN CIVIL APPEAL NO. 8398/2013

APPEAL BEFORE CIT (Appeals)

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS OF 2017 VERSUS J U D G M E N T

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR RECOVERY Date of decision: 17th July, 2013 RFA 383/2012. Versus

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : ARBITRATION & CONCILIATION ACT. Date of decision: 8th March, 2013 EFA(OS) 34/2012

M/S. SAIPEM TRIUNE ENGINEERING PVT. LTD. Plaintiff. - versus - INDIAN OIL PETRONAS PVT. LTD.

2016 (5) TMI 80 - CESTAT NEW DELHI

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI. Company Appeal (AT) (Insolvency) No. 788 of 2018

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI. Judgment delivered on: December 11, 2014

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO OF 2009 SPECIAL LEAVE PETITION (CIVIL) NO.

Adjudication and appeals. R. Krishnan Advocate supreme court (Customs, excise and service tax)

NATIONAL GREEN TRIBUNAL PRINCIPAL BENCH (DELHI)

IN THE GAUHATI HIGH COURT. Writ Petition (C) No.606 of 2016

[TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II, SECTION 3, SUB-SECTION (i)]

$~R-5 * IN THE HIGH COURT OF DELHI AT NEW DELHI

APPEAL, REVIEW & REVISION:

ENFORCEMENT ACTIONS BY SEBI. J.Ranganayakulu Executive Director (Law), SEBI

CUSTOM EXCIE & SERVICE TAX APPELLATE TRIBUNAL. CA. PIYUSH.S. CHHAJED.FCA., DISA Chartered Accountant

: 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH BEFORE THE HON BLE MR.JUSTICE A.N.VENUGOPALA GOWDA. WRIT PETITION No OF 2015 [EXCISE]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION. CRIMINAL APPEAL NO OF 2017 (Arising out of SLP(Crl.) No.

*IN THE HIGH COURT OF DELHI AT NEW DELHI. % Date of decision: 16 th February, Versus

Penalty u/s. 271(1)(c): Initiation, Satisfaction & Levy The Unwritten Mandates

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL/APPELLATE JURISDICTION TRANSFERRED CASE (C) NO. 150 OF versus WITH CIVIL APPEAL NO.

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Central Excise Duty on free Samples

THE GAUHATI HIGH COURT AT GUWAHATI (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)

IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : ARBITRATION AND CONCILIATION ACT, 1996 FAO No.8/2010 DATE OF DECISION : 2nd January, 2014

2 the return was not fatal and therefore, did not attract the consequences laid down in Section 185 of the Income Tax Act. Aggrieved by the order of t

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Vishal Garg and others Petitioners

IN THE LAHORE HIGH COURT LAHORE JUDICIAL DEPARTMENT

IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (L) No of 2013

THE FOREIGN TRADE (DEVELOPMENT AND REGULATION) ACT, 1992 ACT NO. 22 OF 1992

ii) The respondent did not furnish a Bank Guarantee for the amount of Rs crores and also did not pay the service tax payable on the said amount

Ramrajsingh vs State Of M.P. & Anr on 15 April, 2009 REPORTABLE

IN THE HIGH COURT OF JHARKHAND AT RANCHI I.A. No of 2014 with I.A. No. 175 of 2011 in Cr.Appeal (D.B.) No. 904 of 2008

IN THE HIGH COURT OF KARNATAKA, BENGALURU BEFORE. THE HON'BLE Dr.JUSTICE VINEET KOTHARI. WRIT PETITION No.37514/2017 (T-RES)

IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

* IN THE HIGH COURT OF DELHI AT NEW DELHI. + Writ Petition (Civil) No. 2252/2011

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

IN THE HIGH COURT OF KARNATAKA, BENGALURU PRESENT THE HON'BLE MR. JUSTICE VINEET SARAN AND THE HON BLE MR. JUSTICE ARAVIND KUMAR C.S.T.A.NO.

THE COMPETITION (AMENDMENT) BILL, 2007

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 210 OF 2007 STATE BANK OF PATIALA APPELLANT MUKESH JAIN & ANR.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU. Writ Appeal No 3169 of 2014 (S-RES)

DVAT LATEST AMENDMENTS

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2467/2015

#1 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI. versus. MR RAJBIR ORS... Defendant Through: Ex Parte

IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL COMPANY APPELLATE JURISDICTION. Company Appeal (AT) (Insol.) No. 134 of 2017

A Presentation on Practice and Procedure before CESTAT. By Vipin Jain Advocate

IN THE NATIONAL COMPANY LAW TRIBUNAL CHANDIGARH BENCH, CHANDIGARH

Transcription:

2009 NTN (Vol. 40) [IN THE SUPREME COURT OF INDIA] Hon ble Arijit Pasayat & Hon ble Lokeshwar Singh Panta, JJ. Civil Appeal No. 5166 of 2006 with Civil Appeal No. 5167 of 2006 Benara Valves Ltd. & Others vs. Commissioner of Central Excise & Another Date of Decision : 23rd November, 2006 For the Appellants For the Respondents : Sri Sushil Kumar Jain, Ms. Pratibha Jain, Mr. Puneet Jain & Mr. U.N. Goyal, Advocates : Mr. B. Dutta, Addl. Solicitor-General of India Interim order - When should be passes - Central Excise Act, 1944 Section 35-F - Merely establishing a prima facie case, an 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 on, it would be undesirable to require the assessee to pay the full or a substantive part of the demand - Petitions for stay should not be disposed of in a routine matter 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 and the order has to be passed keeping in view the factual scenario involved - Merely because this Court has indicated the principles that does not given a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest - Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen s faith in the impartiality of public administration, interim relief can be given - 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 the Revenue have to be kept in view. Cases referred : Siliguri Municipality vs. Amalendu Das AIR 1984 SC 653 Samarias Trading Co. Pvt. Ltd. vs. S. Samuel AIR 1985 SC 61 A.C.C.E. vs. Dunlop India Ltd. AIR 1985 SC 330 S. Vasudeva vs. State of Karnataka AIR 1994 SC 923 (Hon ble Arijit Pasayat, J.) Leave granted. JUDGMENT 2. The challenge in these appeals is to the order passed by the Allahabad High Court dismissing the writ petitions filed by the appellants who had filed the writ petitions questioning the correctness of the order passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (in short, the Tribunal ) dealing with the

applications filed for staying recovery of duty and penalty imposed pending disposal of the appeals before the Tribunal. The allegations against the appellants were to the effect that they were removing excisable goods clandestinely without payment of duty and without raising Central excise invoices/bills under the guise of estimates/ rough estimates to their front trading firms which they called houses and consequently to the ultimate customer. Searches were conducted at the premises of manufacturing units and other connected concerns, through whom the goods were allegedly sold. During the search, incriminating documents were allegedly recovered from various premises and statements of the concerned person have also been recorded. 3. After issuing notice under the Central Excise Act, 1944 (in short, the Act ), the Central Excise Rules, 1944 (in short, the Rules ) and the Central Excise Rules, 2001 (in short, the 2001 Rules ) the Commissioner of Central Excise, Kanpur, demanded Rs. 2,05,31,762 from M/s Benara Automotives Pvt. Ltd. (in short, BAPL ) and penalty of an equal amount was imposed under Section 11AC of the Act. Additionally, penalties were imposed on six other persons. The Commissioner also confirmed the demand of Rs. 24,24,813 in respect of M/s Benara Valves Ltd. (in short, BVL ) and imposed penalty of an equal amount. Additionally, Rs. 1,00,000 each was imposed on several other persons. Appeals were preferred before the Tribunal challenging the determination. Prayer for stay of realization of demands raised till disposal of the appeals in terms of Section 35F of the Act was made. The Tribunal directed as follows: Therefore, considering the facts and circumstances of all these cases, we direct the applicant to pre-deposit the following amounts within eight weeks under Section 35F of the Central Excise Act: (1) M/s BAPL and M/s BVL are directed to pre-deposit twenty-five percent of the duty demanded from them; (2) The other applicants are directed to pre-deposit twenty-five percent of the penalties imposed on them. 4. Questioning the correctness of the order passed by the Tribunal, the writ petitions were filed. By the impugned orders, the High Court directed extension of time to comply with the Tribunal s order. However, the prayer for dispensation of deposit was rejected. 5. Learned Counsel for the appellants submitted that the demands raised will not stand the test of appeal as the correct legal and factual position was not kept in view while adjudicating the issues. Mr. B. Dutta, learned Additional Solicitor General, for the respondents submitted that the demands have been raised after detection of large scale manipulations and evasions and no relief should be extended to such dishonest manufacturers. According to him, neither any prima facie case has been established, nor any case of irreparable loss or

balance of convenience has been made out. 6. The 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. 7. The applicable principles have been set out succinctly in Siliguri Municipality vs. Amalendu Das AIR 1984 SC 653, Samarias Trading Co. Pvt. Ltd. vs. S. Samuel AIR 1985 SC 61 and Assistant Collector of Central Excise vs. Dunlop India Ltd. AIR 1985 SC 330. 8. It is true that on merely establishing a prima facie case, an 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 on, it would be undesirable to require the assessee to pay the full or a substantive part of the demand. Petitions for stay should not be disposed of in a routine matter 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 and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not given a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen s faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to the decisions in Siliguri Municipality AIR 1984 SC 653 and Dunlop India AIR 1985 SC 330 without analyzing the factual scenario involved in a particular case. 10. Section 3F of the Act reads as follows: 35F. Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty 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 interest of Revenue: Provided further that where an application is filed before the

Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filings. 11. 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 the Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35F. 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 vs. State of Karnataka AIR 1994 SC 923, that under Indian conditions the expression undue hardship is normally related to economic hardship. Undue 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 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. 15. The other aspect relates to imposition of conditions to safeguard the interest of the revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interest of revenue. Therefore, the Tribunal while dealing with the application has to consider the materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interest of the Revenue. 16. In the instant case the Tribunal has rightly observed that the rival stands have to be examined in detail with reference to material on record. 17. The only other question that needs to be examined is whether any reduction of the amounts to be deposited as directed by the Tribunal is called for. 18. It appears that pursuant to the direction given by this Court on August 18, 2006, the appellants have paid Rs. 4 lakhs and Rs. 30 lakhs within the time stipulated. Considering the nature of the dispute and the difficulties highlighted by the appellants seeking dispensation of

deposit, we direct that the appeals shall now be heard without requiring further deposit, if the appeals are free from other defects in accordance with law. However, for the balance of the amount demanded, with a view to safeguard the interest of the Revenue, the appellants shall furnish such security as may be stipulated by the Tribunal. The appeals are accordingly disposed of. No costs. -------------------------