IFP Petro Products Pvt. Ltd. vs Commissioner of C. Ex.

@DELETEUPPERDATA

Heard Sri Deo Nath, Advocate, holding brief of Sri Rajul Bhargav, Advocate, who has filed the review application for the review of our order dated 10-9-2013. It appears that against the order, dated 10-9-2013 [2014 (301) E.L.T. 204 (All.)] the applicant filed Special Leave Petition before the Hon''ble Supreme Court. The Hon''ble Supreme Court has passed the following order on 29-11-2013:

"Heard the learned senior counsel appearing for both the sides at some length.

It has been submitted by the learned senior counsel appearing for the petitioner that the issue with regard to the financial hardship of the petitioner has not been considered by the High Court.

Under these circumstances, we feel that the petitioner should withdraw this petition so as to approach the High Court with a Review Petition so that the averments made by the petitioner with regard to the financial hardship can be considered by the High Court.

The Special Leave Petition is, accordingly, dismissed as withdrawn with the above said liberty.

We hope that if the Review Petition is filed within two weeks from today, the High Court shall dispose of the same within two weeks thereafter.

The respondent-authorities shall not take any coercive steps for recovery of the amount in question within five weeks from today. It is further made clear that the Appellate Authority shall not dispose of the appeal for a period of five weeks from today."

The applicant filed the present review application for the review of the order on the ground that the financial hardship has not been considered by this Court, while disposing of the appeal and, therefore, the order, IFP Petro Products (P.) Ltd. Vs. Customs, Excise and Service Tax, is liable to be reviewed and the financial hardship may be examined.

Sri Ashok Singh, learned counsel for the respondent submitted that it is not correct that the financial hardship has not been considered by this Court. This Court has recorded a categorical finding that no argument has either been advanced or pressed by the learned counsel for the appellant in respect of financial hardship and it appears that this issue has not been raised before the Tribunal also as there is nothing either in the order dated 1st October, 2012 or in the order dated 2nd of July, 2013 of the Tribunal in this regard and before this Court also in Appeal filed earlier, the financial hardship has not been pleaded. The applicant has not come out with the case and has not filed any affidavit of the counsel, who argued the appeal that the observation made in the order is incorrect. He further submitted that in the application under Section 35F, filed before the Tribunal, the financial hardship has not been pleaded. Even in the grounds of appeal before this Court, no ground relating to financial hardship has been taken. The order of the Tribunal has not been challenged for non-consideration of the financial hardship or that in view of the financial hardship, the order of the Tribunal was not justified. Therefore, the review application is liable to be rejected.

We have considered rival submissions.

It would be relevant to record the findings recorded by this Court in the order, dated 10-9-2013 wherein financial hardship has been considered, which reads as follows:

"It is a settled principle of law that it is upon the appellants to establish the case of undue hardship for waiver of the prerequisite requirement of deposit of the amount of duty, interest and the penalty. To consider the case of the ''undue hardship'', a strong prima facie case and the financial hardship are to be examined. No argument has either been advanced or pressed by the learned counsel for the appellant in respect of financial hardship and it appears that this issue has not been raised before the Tribunal also as there is nothing either in the order dated 1st October, 2012 or in the order dated 2nd of July, 2013 of the Tribunal in this regard and before this Court also in Appeal filed earlier, the financial hardship has not been pleaded."

The application under Section 35F is at page 81 of the memorandum of appeal. There is no pleading of the financial hardship in the application. The contents of the application read as follows:

"1. That the appellant has received Order-in-Original No. 9-10/Commissioner/Ghaziabad/2011-12, dated 23-2-2012, passed by Commissioner of Central Excise, Ghaziabad (U.P.), wherein duty of Rs. 2,54,82,272/- (1,92,02,227/- + 62,80,045) has been demanded along with interest; and a penalty of Rs. 2,54,82,272/- has been imposed.

The aforesaid order has been passed without any merit.

That the appellant has filed an appeal against the said order before Hon''ble Appellate Tribunal.

That the appellant has a strong prima facie case in their favour and for this, relies on all the grounds taken up in the memorandum of appeal of the main appeal.

In view of above submissions, the appellant pray for the following:

PRAYER

That the impugned order may be stayed.

That recovery of duty, amounting to Rs. 2,54,82,272/-, and interest thereon may be stayed.

That recovery of penalty, amounting to Rs. 2,54,82,272/-, may be stayed.

That the Hon''ble Appellate Tribunal may provide any other relief deemed fit in the facts and circumstances of the case."

Perusal of the grounds of appeal reveals that no ground has been taken relating to financial hardship. The order of the Tribunal has not been challenged on the ground that the financial hardship has not been considered inasmuch as there was a financial hardship and, therefore, the order of the Tribunal was not justified. No substantial question of law has been framed relating to financial hardship. In the order dated 10-9-2013, it has been categorically observed that no argument has either been advanced or pressed by the learned counsel for the appellants in respect of the financial hardship. This observation has not been disputed. The counsel, who argued the appeal, has not come forward to dispute the above assertion. Therefore, when the appellant has not pleaded and raised any argument about the financial hardship, there was no occasion to consider the same. The pleading in this regard in the review application cannot be entertained. In view of the above, we do not find any substance in the review application. No ground for review of the order, dated 10-9-2013 is made out. The application is rejected.