UPLUS BATTERIES PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE assessee has preferred this writ petition challenging the order passed by the CESTAT, granting conditional stay order. The grievance of the petitioner is that on the date the stay application was listed for hearing, his Counsel was not well. Therefore, he sent an application for adjournment. The said request was rejected and the CESTAT proceeded to pass orders. He contends that, in law, the petitioner is entitled to three adjournment and that has not been extended to him. Secondly, the Tribunal ought to consider the undue hardship in the event of not granting the order of stay. Therefore he contends that the impugned order passed is in violation of principles of natural justice and requires to be set aside.

(2.) WE do not see any merit in the said contention. The petitioner has a right of statutory appeal. Before that right of statutory appeal is exercised, in law, he is expected to make a pre -deposit of the duty found due by the original authority. It is open to him to request the appellate authority for waiver of such deposit in entirety or partial. Therefore he can seek stay of operation of the order. The petitioner, as a matter of right is entitled to three adjournments, if he has to address arguments on merits. That right is nothing to do with the right to be heard in so far as waiver of pre -deposit and interim order of stay is concerned. After filing an application for stay, when the matter was listed for hearing of the said application, three days in advance, an application for adjournment is sent to the office. If three days in advance the appellant could know the inconvenience of the Counsel to appear and argue the matter, he could have made alternative arrangements. Instead of making alternative arrangement, he sends an application in advance, seeking adjournment. Rightly the appellate authority declined to grant adjournment and considered the case of the petitioner. The impugned order shows that the petitioner has mis -declared the country of origin in the impugned 117 consignment. The appellate authority was prima facie convinced that the case of mis -declaration of the country "of origin before the customs authorities for which the imports were subjected to levy of Anti -dumping duty, the country where the goods were manufactured was established by volume of evidence gathered by investigation.

(3.) IN so far as the contention that the Tribunal has not considered the case of undue hardship is concerned, the Apex Court in the case of Benara Valves Ltd. v. Commissioner of Central Excise reported in : 2006 (204) E.L.T. 513 (S.C.) : 2008 (12) S.T.R. 104 (S.C.) has held that while dealing with 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. It was held that in so far as undue hardship is concerned, 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. Under the Indian conditions the expression 'undue hardship' is normally related to economic hardship, which means something which is not merited by the conduct of the claimant or is very much disproportionate to him. The word 'undue' adds something more than just hardship. It means an excessive hardship greater than the circumstances warrant.