Rejection of Application for Modification of Stay

PJ/Case Laws/2011-12/1518

Case: Sarla Performance Fibers Ltd. V/s Union Of India

Citation: 2008-TIOL-783-HC-MUM-CX

Issue:- Whether application for modification of stay can be rejected on the basis that documents of quasi judicial nature were available but not produced before the Tribunal?

Brief Facts: - The brief facts of the case are that the appellants had applied for waiver of pre-deposit being consignor and not consignee. That application was disposed of by order dated 16th July, 2007. The petitioners were called upon to deposit the amount of Rs. 1,20,00,000/-. Their application for modification was rejected. While so holding the Tribunal noted that the Tribunal has by and Large taken a view that such cases warrant for unconditional stay of waiver of pre-deposit.

Petitioner’s Contention: - The petitioner’s contention was that the A.O. had been taking inconsistent stand. However, this was not advanced by the appellants before them. Placing reliance on the judgment of this Court in Baron International Ltd, where this Court look a view that modification can be sought only on grounds arising out of the change in circumstances which was not so in the present case.

The case of the petitioners is that in similar circumstances in the case of the petitioners themselves where they were consignors the A.O. had held the liability as that of the consignee. It is submitted that these orders though available were not placed before the Tribunal it does not mean that the Tribunal is not vested with the power if such documents of quasi judicial nature which were available but not, produced could always be considered even at the stage of variation of the order.

Reasoning of Judgement: - Considering the exercise of discretion by the Tribunal in such cases, it is true that the production of documents in the possession of the petitioners does not amount to change in the circumstances. Nevertheless there is always an inherent power in the Tribunal to do justice. In these circumstances technicalities by themselves should not stand in the way if otherwise there is merit in the contention of the petitioners. Considering the circumstances, the order in so far as the petitioners are concerned is set aside. The Tribunal is directed to consider the documents produced by the petitioners herein and thereafter dispose of the application for modification of the order of pre-deposit according to law Rule made absolute accordingly.

Decision: - Writ Petition disposed of.

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PJ/Case Laws/2011-12/1518

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