KRISHAN KUMAR Vs. COMMISSIONER OF CUSTOMS, ROHTAK

JUDGEMENT

(1.) In this writ petition the petitioner has questioned the correctness of an order dated 18-9-2008 [2009 (238) E.L.T. 159 (Tri.-Del.)] passed by The Customs, Excise and Service Tax Appellate Tribunal, New Delhi, whereby an application for waiver of pre-deposit and grant of stay in terms of Section 129E of the Customs Act, 1962 (for short the Act') has been dismissed.

(2.) Learned counsel for the petitioner made a two-fold submission before us. Firstly, he contended that pre-deposit of a sum of Rs. 10 lacs levied towards penalty would cause undue hardship' to the petitioner within the meaning of proviso to Section 129E of the Act. Reliance, in support of that submission, was placed by the learned counsel upon a copy of the statement of account maintained by the petitioner in the Oriental Bank of Commerce at Hisar. It was submitted by him that the said account is the only bank account being operated by the petitioner in which there is no more than Rs. 1184.86/- lying in credit, thereby making it very difficult for the petitioner to arrange pre-deposit of a substantial amount of Rs. 10 lacs. There is, in our opinion, no merit in that contention. We say so for more than one reasons. Firstly because in terms of provisio to Section 129E of the Act pre-deposit of duty and interest demanded or penalty levied could be waived or reduced by the Commissioner (Appeals) or the Appellate Tribunal on satisfactory proof of any such deposit causing undue hardship to the petitioner. It was, therefore, necessary for the petitioner to plead undue hardship in the application, seeking waiver of pre-deposit before the Tribunal. The application filed by the petitioner seeking waiver of pre-deposit, a copy whereof, has been enclosed with the writ petition as Annexure P-1, however, does not make even a suggestion, leave alone give any cogent reasons for the alleged undue hardship, which the petitioner would suffer, in case the making of pre-deposit was not waived.

(3.) Secondly because the statement of account, which the petitioner now wishes to press into service before us, was never made available to the Tribunal in support of the alleged undue hardship. Thirdly because the allegation that the bank account, referred to by the petitioner in Annexure P-3, is the only account maintained by the petitioner, is a mere assertion unsupported by any other evidence regarding poor financial health or resources of the petitioner. Superadded to all this is the fact that the Tribunal has recorded a clear finding to the effect that the petitioner had knowingly and intentionally involved himself in illegal diversion of duty free materials imported by M/s. Singh Overseas and in exporting sub-standard items towards meeting the export obligations. The Tribunal has come to the conclusion that the petitioner was involved in fraudulent activities. It is noteworthy that a Division Bench of this Court has already dismissed C.W.P. No. 19769 of 2008 [2009 (246) E.L.T. 26 (P&H)] filed by M/s. Singh Overseas and another , against the order challenged in the present writ petition, whereby the said party was directed to deposit a sum of Rs. 1 crore towards duty and a sum of Rs. 10 lacs towards penalty.