Ashwani Kumar Mishra, J. - (1.) This revision is by the company registered under the Indian Companies Act and is engaged in manufacture of Reaction Initiators, Reaction Accelerators and Catalyst preparation. It is a registered dealer under the U.P. Value Added Tax Act 2008. It is aggrieved by an order of the Tribunal dated 20.8.2020 insofar as the Tribunal has required it to deposit 10% of the disputed tax amount as a condition for consideration of its appeal on merits. The order of Tribunal is assailed primarily on the ground that prima facie case of assessee has neither been examined nor there is any consideration of the financial health of the company and, therefore, the order impugned cannot be sustained. It is also urged that on account of COVID-19 Pandemic there is already a pressure upon the company and even 10% of the amount would unnecessarily burden the financial health of the company.
(2.) In support of such contention, learned counsel for the revisionist has relied upon an order passed by the Division Bench of this Court in I.T.C. Ltd. Vs. Commissioner (Appeals) Custom and Central Excise,Meerut-I 2005(184) E.L.T., 347. Para Nos. 35 and 36 of the judgment, which are relied upon, are reproduced:- "35. In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a good financial condition. The arguments that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding the application. The order of the Appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with the law. The expression "undue hardship" has a wider connotation as it takes within its ambit the case where the assessee is asked to deposit the amount even if he is likely to exonerate from the total liability on disposal of his appeal. Dispensation of deposit should also be allowed where two view are possible. While considering the application for interim relief, the Court must examine all pros and cons involved in the case and further examine that in case recovery is not stayed, the right of appeal conferred by the legislature and refusal to exercise the discretionary power by the authority to stay/waive the pre-deposit condition, would be reduced to nugatory/illusory. Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. 36. In view of the above, we are of the considered opinion that as the Appellate Authority has not addressed to itself any of the issues involved in the appeal rather has gone to the issue of financial hardship which was unwarranted and uncalled for in the fact situation of this case. The order impugned cannot be sustained in the eyes of law and we have no option but to allow this petition and set aside the order impugned". An order of the Apex Court in Mehsana District Cooperative Milk P.U. Ltd. Vs. Union of India, 2003 (154) E.K.T. 347 (S,C,) is also relied upon, which is reproduced:- "ORDER 1. Leave granted. 2. The issue here relates to the order passed by the Commissioner (Appeals), Central Excise and Customs, under Section 35F of the Central Excise Act, 1944. By the impugned order, the appellants have been directed to deposit an amount of Rs. 30 lakhs by way of pre-deposit. The reasoning given in support of such order is wholly unsatisfactory. The appellate authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate Authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of the same determined the quantum of deposit taking into consideration the financial hardship and other such relevant factors. 3. We accordingly set aside the decision of the High Court as well as the impugned order dated 14-8-2002 and remand the matter back to the appellate authority for re-determining the issue under Section 35F of the Act after affording an opportunity of hearing to the parties. 4. The appeal is allowed without any order as to costs".
(3.) Reliance is also placed upon a decision of this Court in Sanjay Kumar Srivastava, Varanasi Vs. Commissioner of Trade Tax and others, 2000 UPTC, 396.;