*1* kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2217/2009 M/s Shrishti Impex Private Limited. ..Petitioner -Versus- Union of India and others. ..Respondents ........... Mr.Vikram Narkani i/b Mr.M.R.Baya, for the Petitioner. Mr.P.S.Jetley, for the Respondents. .......... CORAM : V.C.DAGA & K.K.TATED, JJ. Date : 15th February, 2010. P.C. 1 Heard. Perused the petition. 2 This petition challenges the orders dated 21.01.2008 (Exhibit-A), dated 14.11.2008 (Exhibit-D) and dated 06.08.2009 (Exhibit-F) annexed to the petition whereby the Tribunal directed the Petitioner to deposit a sum of Rs.15 Crores. 3 In the present case, a show-cause notice was issued to the Petitioner seeking to demand: (a) duty amounting to Rs.14,49,00,309/- on the finished goods cleared to various parties viz. M/s Kakda Impex (I) Pvt.Ltd., M/s Shivarti Textiles Pvt.Ltd., M/s Shree Shyam Impex, M/s Sudarshan Texport, M/s Pearl *2* Agencies, M/s Rajendra Textiles and M/s G.K.Enterprises. (b) Duty amounting to Rs.8,56,57,959/- on indigenous raw materials as detailed in Annexure-A, B, C and D to the show cause notice. (c) Duty amounting to Rs.3,21,00,190/- on imported raw materials as detailed in Annexure E to the show cause notice alleged to have been cleared which were not used for the manufacture of finished products but have been shown to have been cleared against DFRC/DEEC licences under which only finished goods could have been cleared and not the raw materials themselves. It, therefore, appeared that the imported goods were cleared as such without subjecting them to any process. (d) Duty amounting to Rs.6,82,56,396/- on indigenous raw materials procured duty free but not accounted for as detailed in Annexure F to the show cause notice. The investigations revealed that though the assessee claimed that the relevant CT 3 certificates got issued by it for procurement of raw materials, were lost in some accident. These CT 3 certificates were *3* found to have been duly accounted for by the suppliers of the raw materials who had supplied the goods against these CT 3 certificates and had received full payment for the same from M/s SIPL. These suppliers were also in possession of re-warehousing certificates which were duly signed by the authorised signatories of M/s SIPL and on which signatures of Central Excise officers were found to be forged. However, the authorised signatories admitted that the signatures on these re-warehousing certificates were their own, which statements have not been retracted till today. 4 The Adjudicating Authority namely the Commissioner of Central Exicse, Thane-I passed the order-in-original dated 21.01.2008 confirming duty demand, penalty and fine. 5 The Petitioner preferred appeal against the Order-in- Original dated 21.01.2008 before the Appellate Tribunal in which the Petitioner had preferred an application for stay seeking waiver of pre-deposit. The said application for stay was decided by the Tribunal by order dated 14.11.2008 thereby, partly allowed the Petitioner’s application for stay directing to deposit Rs.15 Crores. 6 The Petitioner, thereafter, preferred Miscellaneous *4* Application No.172/2009 for modification of the order dated 14.11.2008 and claimed waiver of pre-deposit of Rs.15 Crores and hearing of appeal on merits. The Tribunal rejected the Misc. Application by the order dated 06.08.2009 on the ground that the Petitioner failed to make out a case for modification of the order. 7 The learned counsel appearing on behalf of the Petitioner submitted that the Tribunal has without application of mind merely considered the findings of the Commissioner which are in turn based on the statements alone, despite the fact that such statements are yet to be tested in evidence and truth of the contents thereof is yet to be established or proved, as such, the Tribunal has not exercised judicial power judiciously. Hence, the impugned orders are liable to be quashed and set aside. 8 The learned counsel further submitted that the impugned orders suffer from errors apparent on the face thereof inasmuch as the fact remains that the factory does not belong to the Petitioner; although the Petitioner maintains that the Lease Agreement dated 03.07.1999 is genuine. In order to establish the financial hardship, reliance is placed on the proceedings before the Debts Recovery Tribunal (DRT). 9 The learned counsel for the Petitioner further submitted that the orders passed by the Debts Recovery Tribunal have *5* confirmed that the Petitioner has no assets whatsoever much less immovable property so as to be in position to deposit Rs.15 Crores. He, therefore, submitted that the Tribunal has misdirected itself in law and thereby, reached to erroneous conclusion directing pre- deposit of huge amount of Rs.15 Crores. The orders passed by the Tribunal are, thus, liable to be quashed and set aside. 10 Per contra, the learned counsel appearing on behalf of the Revenue supported the impugned orders. 11 We have gone through the impugned order passed by the Tribunal. In the present case, the Tribunal has considered all the facts and circumstances including financial hardship of the Petitioner. In paragraph No.26 of the order dated 14.11.2008, the Tribunal has considered in detail the financial hardship of the Petitioner. Paragraph No.26 reads as under:- “26. The only aspect is to be considered is the financial hardship pleaded by them. In this regard we find that the public notice for sale of assets relates to M/s Sonu Synthetics Ltd. whose building and premises were taken on lease by M/s SIPL. Since the assets did not belong to M/s SIPL themselves, financial hardship of their landlord M/s Sonu Synthetics Ltd. cannot be considered as their hardship. The second evidence regarding financial hardship is in the form of rejection of their application by the Debt Recovery Tribunal. We however note that the Tribunal has in Para 15 observed that the applicant has in collusion with other parties created a document claiming right over the property and that M/s SIPL is not a party *6* to the lease agreement. They have not produced any document to prove its possession. This clearly brings out that the rejection of the application was on account of their own misdeeds.” 12 In the present case, the Commissioner has demanded total duties of Rs.33,09,14,854/- and also imposed equal amount of penalty on the Petitioner. The Commissioner has also imposed varying penalties on its different Directors and ex-Directors which totally come to Rs.2.65 Crores. Considering this fact, the Tribunal partly allowed the Petitioner’s stay application directing them to deposit a sum of Rs.15 Crores. In any case there is no provision under the Customs Act for review of the order passed by the Tribunal as such rejection of modification application cannot be faulted. Even at the time of rejecting the Petitioner’s application for modification of the stay order on the ground of financial hardship, the Tribunal has rightly relied upon the judgment of the Apex Court in case of M/s Benara Valves Ltd. vs. Commissioner reported in 2006(204) ELT 513 (SC). In view of the law laid down by the Apex Court, it is imperative on the part of the Petitioner to show that it would suffer undue hardship if it is required to make the pre- deposit as a condition for hearing of the appeal. However, in the present case, the Petitioner has failed to produce any cogent evidence to show undue hardship. Assuming that the orders passed *7* by the Debts Recovery Tribunal are legal and valid, that by itself does not prove that any financial hardship is being suffered by the Petitioner warranting waiver of deposit amounting to Rs.15 Crores. No error on the face of record or any perversity in the impugned order could be demonstrated by the Petitioner. Undue hardship is a matter within the special knowledge of the Petitioner and has to be established by the Petitioner. A mere assertion about undue hardship would not be sufficient as held by the Apex Court in the case of M/s Benara Valves Ltd. vs. Commissioner (supra). Applying the ratio of the said judgment to the facts of the case in hand, it becomes apparent that the impugned order is not one which could be branded as perverse. 13 In the above facts and circumstances, we do not find any substance in the present Writ Petition and the same is dismissed in limini with no order as to costs. (K.K.TATED, J.) (V.C.DAGA, J.)