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Judgment
Mentioned not on board. In the light of the urgency made out, the appeal is taken up for admission. The appeal is directed against the order of pre-deposit. The contention before us is that the applicant is a Karta of M/s. Jai Aravali Industries which is a HUF (Hindu Undivided Family) while the Tribunal directs the HUF to deposit a sum of Rs. 5,00,000/- towards penalty, it also directs the petitioner-applicant/appellant separately to pay Rs. 1,00,000/-. Therefore, apart from the fact that both cannot be penalized and secondly this is not a case where the applicant/appellant before us was responsible for the under-valuation that this is a fit case where the discretion should not have been exercised so arbitrarily by the Tribunal.
Mr. Jetly appearing on behalf of the revenue would support the order of the Tribunal and submit that it is made at the stage of pre-deposit, and therefore, appeal raises no substantial questions of law and deserves to be dismissed.
Having perused the order and the light of these submissions, we are of the opinion that appeal deserves admission. It is admitted on the following substantial questions of law:-
(i) Whether the Tribunal erred in directing the deposit of a sum of Rs. 5,00,000/- by the HUF as also separately by the appellant?
(ii) Whether the Tribunal should have found as to whether a prima facie case as has been made out by the appellant, was strong enough to give direct complete waiver of duty or of grant partial relief?
With the consent of the learned advocates, we have taken up this appeal for final disposal. We are of the opinion that the Tribunal was not justified in imposing the condition of pre-deposit of the penalty amount. In the facts and circumstances of the case and when the appellants not being attributed any direct role in relation to the under-valuation of goods, the Tribunal should not have imposed a condition which prejudicially affects the right of the appeal conferred on the appellant by law. For all these reasons, we direct that on a deposit of the sum of Rs. 2,50,000/- by the HUF and which sum shall be deposited within a period of four weeks from today, there shall be waiver of pre-deposit and stay of recovery in so far as the amount of penalty directed against the appellant. Meaning thereby the appellant would not be required to deposit the sum of Rs. 1,00,000/- as directed by the Tribunal, in the event, our order passed today is complied by the HUF. If the order is not complied with, then, the direction issued by the Tribunal shall revive and non-compliance therewith to visit all the consequences in law. In the event, our order is complied, the Tribunal to hear the appeal in accordance with law. We clarify that we have not expressed any opinion on the rival contentions.