Factors for deciding stay application.

PJ/CASE LAW/2014-15/2452

Case:-M/s HIRA FERRO ALLOYS LTD Vs THE COMMISSIONER OF APPEALS, CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, VISAKHAPATNAM AND ANOTHER

Citation:-2014-TIOL-334-HC-AP-CX

Brief Facts:-This writ petition is directed against the judgment and order dated 7.1.2014 of the learned Commissioner, Customs, Central Excise and Service Tax (Appeals), Visakhapatnam, whereby, the learned Commissioner has refused to grant full waiver of pre-deposit contrary to what has been prayed for by the petitioner. He has found on fact that the petitioner has not been able to make out a reasonably strong case on merit.

Appellant contentions:- Learned counsel for the petitioner argues that such finding could not be reached as reasons have not been spelt out.

According to the counsel, the reasons have been given but there has not been any elucidation. We feel that had there been elucidation, it would have been case of pre-judging. The law provides for waiver of pre-deposit where there has been undue hardship and undue hardship is ordinarily perceived as undue financial hardship. ( See : S. Vasudeva vs. State of Karnataka & Others (AIR 1994 SC 923).

This legal measure is intended to apply adjudging prima facie case also as it will appear from following Supreme Court decisions.

1) Siliguri Municipality & Others vs Amalendu Das & Others reported in (1984) 2 SCC 436)
2) Samarias Trading Co. Pvt. Ltd., vs. S. Samuel & Others (AIR 1985 SC 61)
3) CCE vs. Dunlop India Ltd., reported in (1985) (1) SCC 260.

Thereafter, the Apex Court in case of Benara Valves Ltd., vs. CCE reported in (2006) 13 SCC 347 noting aforesaid three decisions, while dealing with Section 35F of Central Excise Act, 1944 explained legal position as follows:

"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 legs to stand on, 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 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 give 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.

It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases without analysing factual scenario involved in a particular case.

Section 35F 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 filing."

Respondent Contentions:-The respondent reiterated the findings of the Tribunal.

Reasoning of Judgment:- 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 be kept in view.

As noted above there are two important expressions in Section 35(F). 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 v. State of Karnataka and Ors . (AIR 1994 SC 923) that under Indian conditions expression
"Undue hardship" is normally related to economic hardship. " Undue" which 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.

For a hardship to be "undue" it must be shown that the particular burden 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.

The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant.

The other aspect relates to imposition of condition to safeguard the interests 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 the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue."

It thus appears upon careful reading of above paragraph that if a litigant has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relatable to prima facie case can be perceived. According to High Court, it depends upon each and every individual case. Without laying down any exhaustive guidelines, we think that following will be useful for adjudicating the application for waiver of full deposit by the Commissioner as well as this Court.

i) If on apparent reading of the matter, it is found that the order impugned is passed patently without having any jurisdiction, meaning thereby, if the authority concerned lacks inherent jurisdiction to pass such order, such a case would be termed to be one of the strongest prima facie case and a litigant should not be subjected to suffer with a condition of pre-deposit in a case of this nature till the disposal of appeal and full waiver would be justified.

(ii) When it is found that the impugned order was passed though having jurisdiction but on apparent non-application of appropriate law or mis - application of law, patently contrary to Supreme Court decision or High Court decision on identical issue which has reached finality, it will also be a strongest case where full waiver be justified. In cases where it is found that there has been an arguable case, apparently, without inviting the counter arguments, the matter cannot be decided, the litigant should be subjected to make pre-deposit to some extent as the learned Commissioner, thinks fit. But, where it is found that there is no absolute debatable case, in those cases, appeals may be allowed to be preferred, but, with the full deposit.

In view of the aforesaid discussion, we feel that the learned Commissioner has exercised his jurisdiction judiciously as we notice it is in the category of arguable case and the condition of pre-deposit of 50% of the duty demanded is not unjustified. We think that to meet the ends of justice, time granted by the learned Commissioner for depositing of the amount of pre-deposit should be extended. Accordingly, we extend the same for a period of one month from date of receipt of the copy of this order and if the pre-deposit is made, then appeal will be heard out in accordance with law within a period of one month thereafter. We keep all points open. We have not decided anything on the merits of the case.

The writ petition is accordingly dismissed.

Decision:-Writ Petition Dismissed.

Comment:- The gist of the case is that the stay application are to be decided by considering 3 factors in mind, merits of the case, financial hardship and safeguarding the interest of revenue.If it is found that the order is passed patently without having any jurisdiction, such a case would be termed to be one of the strongest prima facie case, full waiver would be justified. If it is found that the order was passed though having jurisdiction but on apparent non-application of appropriate law, or disregard of Supreme Court or High Court decision, it will also be a strongest case where full waiver be justified. In cases where it is found that there has been an arguable case, apparently, without inviting the counter arguments, the matter cannot be decided, certain percentage may be ordered as pre-deposit. Accordingly, the High Court found that as the Tribunal has exercised its discretion judiciously, there was no reason to interfere. However, the time for depositing pre-deposit was extended.

PREPARED BY: MEET JAIN

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PJ/CASE LAW/2014-15/2452

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