INDIA VISION SATELLITE COMMUNICATIONS Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner has approached this Court under Article 226 of the Constitution of India, seeking to challenge Ext. P6 order of the third respondent and to quash the same to the extent it directs the petitioner to effect pre-deposit of fifty per cent of the tax confirmed, within fifteen days of receipt of the order. Petitioner also seeks a direction to the respondents to refrain from taking any coercive steps for recovery of the tax amount confirmed against the petitioner by Ext. P3 order. Briefly put, the case of the petitioner is as follows :

(2.) Bhikhubhai Vithalabhai Patel and Others v. State of Gujarat and Another, 2008 4 SCC 144] was not a case actually under the Central Excise Act. Paragraphs 22 and 23 on which counsel made emphasis read as under:

(3.) On a conspectus of the position obtaining, particularly having regard to the latest decision on this question itself, it cannot be gainsaid that the matter could not be looked at only from the point of view of prima facie case being established. There are other elements also in the decision making process. The question of interest of Revenue cannot be brushed aside. Further, as held by the Apex Court, the question of undue hardship must be judged on the basis of materials produced before the Authority. In this connection counsel for petitioner has submitted that the petitioner had specifically brought to the notice of the Authority and also made available materials that the petitioner-Company is in dire financial constraints. In fact, counsel would submit that the present loss is in the tune of nearly Rs. 28 Crores and though this was brought to the notice of the Authority, this issue was not addressed, he contends. On this submission made, I directed the counsel for the respondents to get specific instructions on the question whether the petitioner has specifically pleaded financial hardship and also produced materials. Today, when the matter was argued, counsel for the respondents brought to my notice that neither the petitioner had specifically pleaded financial hardship, nor was any material produced. Counsel for petitioner also produced a Verified Petition producing a petition to dispense with the payment of duty. It reads in its substantial portion as follows :