IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.W.P. No. 3015 of 2008 DATE OF DECISION : 03.03.2008 M/s Hindustan Petroleum Corporation Ltd. .... PETITIONER Versus The State of Haryana and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Randhir Chawla & Ms. Renu Sahgal, Advocates, for the petitioner. * * * SATISH KUMAR MITTAL , J. M/s Hindustan Petroleum Corporation Limited (hereinafter referred to as `the petitioner Corporation') has filed this petition under Articles 226 and 227 of the Constitution of India, challenging the order dated 3.12.2007 (Annexure P-3), passed by the Haryana Tax Tribunal, Chandigarh, confirming the order dated 26.4.2007 (Annexure P-2) passed by the Joint Excise & Taxation Commissioner (Appeals), Ambala, respondent No.3 herein, (hereinafter referred to as `the first Appellate Authority'), whereby the petitioner Corporation was directed to deposit 10% of the additional demand as pre-condition for entertaining the appeal filed by it against the order of assessment. CWP No. 3015 of 2008 -2- In the present case, the Assessing Authority, Ambala, framed the assessment against the petitioner for the assessment year 1997-1998, whereby the stock transfers effected from the petitioner's depot at Ambala to its branches at Parwanoo, Shogi (HP) and Chandigarh were treated as inter- state sales under the Central Sales Tax Act, 1956 and were subjected to tax and a demand of Rs. 6,59,74,108/- was created. Undisputedly, against the said order of the Assessing Authority, the petitioner filed an appeal. Initially, the appeal was filed before the Sales Tax Appellate Authority, which was subsequently transferred to the first Appellate Authority. Along with the appeal, an application under Section 39 of the Haryana General Sales Tax Act, 1973 was also filed, praying for waiver of condition to pre-deposit the additional demand of tax for entertaining the appeal. The said application was considered and decided by the first Appellate Authority with a direction to the petitioner to deposit 10% of the additional demand as a pre-condition for entertaining the appeal. Feeling aggrieved against the said order, the petitioner filed an appeal before the Haryana Tax Tribunal, Chandigarh, who vide its order dated 3.12.2007 has dismissed the appeal and confirmed the order passed by the first Appellate Authority. Against the said order, the instant petition has been filed by the petitioner. We have heard counsel for the petitioner and gone through the impugned orders. Though in this petition, the petitioner has also challenged the Assessment Order (Annexure P-1), but during the course of arguments, CWP No. 3015 of 2008 -3- learned counsel for the petitioner has confined his prayer with regard to the impugned orders dated 3.12.2007 (Annexure P-3) and 26.4.2007 (Annexure P-2) only, whereby application of the petitioner for waiving of condition of pre-deposit of the additional demand has been disposed with a direction to deposit 10% of the additional demand. Counsel for the petitioner submits that both the authorities below have not properly appreciated the difficulties being faced by the petitioner Corporation in running its business and a harsh condition of depositing 10% of the additional demand has been imposed. It has been argued that due to the existing prevalent prices of petrol and diesel, which has been fixed by the Government much below the cost of procurement, the petitioner Corporation is suffering huge losses, and if it has to deposit 10% of the additional demand, it will face more financial hardship. Counsel submits that both the authorities below, while taking into consideration the annual turnover of the petitioner Corporation, have wrongly come to the conclusion that its financial position is good. He further submits that on merits, the petitioner Corporation has good case, therefore, keeping in view these factors, the authorities below should have waived off the condition of pre-deposit of the additional demand for entertaining the appeal. After hearing counsel for the petitioner and going through the impugned orders, in view of the law laid down by the Hon'ble Apex Court in Indu Nissan Oxo Chemicals Ind. Ltd. v. Union of India and others, (2008) 10 RC 132 and Union of India and another v. Adani Exports Ltd. and another, (2008) 10 RC 225, we are of the opinion that by taking into CWP No. 3015 of 2008 -4- consideration the financial hardship being faced by the petitioner Corporation, in order to safeguard the interests of the Revenue, both the authorities below have already exercised the discretion in favour of the petitioner by ordering deposit of only 10% of the additional demand as pre- condition for entertaining the appeal. It is well settled that at the time of consideration of the application for waiving off the condition of pre-deposit of the additional demand, the Court is not required to go into the merits of the case. The authorities below, while taking into consideration the prima facie case, balance of convenience and irreparable loss, have ordered that the petitioner will pay only 10% of the additional demand and furnish surety bond for the balance amount. Such an order, in our opinion, does not require any interference in the writ jurisdiction of this Court. In our opinion, the requirement to pay 10% of the additional demand will not cause hardship, which can be termed as undue financial hardship, as 10% of the additional demand is very nominal. Even otherwise, a perusal of the order passed by this Court in CWP No. 10040 of 1998, which has been relied upon by counsel for the petitioner, shows that it was based on concession. Hence, we are not inclined to interfere in the impugned order. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE March 03, 2008 ( RAKESH KUMAR GARG ) ndj JUDGE