SAMEER INDUSTRIES Vs. COMMISSIONER OF CUSTOMS, KANDLA

JUDGEMENT

(1.) The appellants are seeking modification of stay order passed by this Tribunal vide order No. S/1154 -1157/ WZB/AHD/2008 on the ground that the following arguments made by them during the course of hearing have not been taken into consideration. Arguments which have not been taken into consideration, as per application filed by them, are as under : -

(2.) FROM the submissions made in the application, it can be seen that the appellants would like the Tribunal to take account of the facts and legal aspects even during the consideration of stay application. What is required to be seen at stay stage is only whether a prima facie case exists or not, financial position of the appellant and balance of convenience with regards pre -deposit under Section 35F of Central Excise Act relevant to the person.

(3.) I is (sic) also necessary to consider the provisions of Section 35F before proceeding further : - SECTION 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 there 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. From the above, it may be seen that the appellants are required to deposit full amount of duty unless the Tribunal is satisfied that such pre -deposit would cause undue hardship to such person and order, that requirement of such deposit may be dispensed with. In fact, Section also requires the Tribunal to impose safeguards for revenue.