IN THE HIGH COURT OF DELHI, while deciding on 29.8.09 the Writ Petition (Civil) No. 1793 of 3008 in re: VIRENDER KUMAR YADAV vs UNION OF INDIA, it was observed as follows:-

QUOTE: From various judicial pronouncements on this issue, the position which emerges is that the Tribunal while considering any application for waiver of deposit is to take into account firstly the existence of a PRIMA FACIE case. In case, it is found that a party has a very strong PRIMA FACIE case, and / or where the errors in the impugned order are writ large on the record, in such a case, it would be competent for the Court in the exercise of its jurisdiction to grant waiver of pre-deposit since in such a case requiring a pre-deposit itself would amount to UNDUE HARDSHIP. There is no denying of the fact that while dealing with the application for stay it is neither desirable nor proper for the Tribunal or any other authority to embark upon a detailed inquiry to find out whether the stand of the applicant before it is correct or not because expression of any opinion on merits at that juncture, without full-fledged hearing and consideration of entire material, is likely to cause prejudice to either side. But at the same time, the authority concerned is required to consider whether with reference to the material placed before it, a PRIMA FACIE case for grant of stay is made out or not and the balance of convenience lies in whose favour. UNQUOTE

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_1793]

HIGH COURT ORDER

[EDITOR's NOTE:  This judgement of the Delhi High Court re-emphasises what a quasi-judicial authority as well as a Tribunal shall keep in mind while considering an application for grant of stay of any order which is under appeal, from the aggrieved party [whether it is the Dept. of Revenue or the asseessee / importer]. In fact, this is how the appellate / revisionary authorities as well as the Tribunal benches [since its inception in 1982] have been dealing with the stay applications. If this practice continues, then, lot of relief would be available to the aggrieved persons and their confidence on their application on merits being dealt with by the adjudicating forum would also increase. SATHYAMEVA JAYATHE]

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS DISPENSATION, ERROR IN ORDER MANIFEST ON RECORD, PRE-DEPOST, PRIMA FACIE, STAY, UNDUE HARDSHIP

IN THE HIGH COURT AT CALCUTTA, while deciding the Writ Petition No.261 of 2008 with W.P. Nos. 1161, 230, 1016, 2428 (W) and 4006(W) OF 2008, ON 23.6.09 in re: PROMISING EXPORTS LTD vs U.O.I. it was observed as follows: -

QUOTE: It has been noted that Section 35C(2A) directs that the “Appellate Tribunal” to “hear and decide every appeal” and significantly its first proviso speaks of “an order of stay made in any proceeding relating to an appeal”. Now what is the ambit of the words “an order of stay in any proceeding relating to an appeal”. Does it include an order passed under Section 35F? Since the proviso to Section 35F speaks of, in case of “undue hardship”, dispensing with the deposit of duty demanded or penalty levied on certain conditions “pending appeal”, it is certainly a proceeding relating to an appeal filed under sub-section (1) of Section 35B as contemplated in 35C(2A). Moreover, that an order passed under 35F is a part of the proceedings in appeal is evident from the words at the outset of the said section which relates to “any appeal under this Chapter”. Further, though the words “an order of stay” or “stay order” appearing in 35C(2A) do not appear in Section 35F, it cannot but mean an order of stay passed by the Appellate Tribunal made on an application of waiver of predeposit while dispensing with the predeposit of duty demanded or penalty levied under Sec 35F which otherwise should have been deposited. Looking at the provisions, in my view, Section 35C(2A) has to be interpreted in a manner so as to bring it in harmony with the other provisions particularly Section 35F. Intention must not be inferred solely from Section 35F if it militates against the expressed and unambiguous provisions in 35C(2a).

[for full text please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_cal_wp_261]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS HARMONY, ORDER OF STAY, PENDING APPEAL, RELATING TO AN APPEAL, UNDUE HARDSHIP