- (1.) R. B. Misra, J. By this writ petition the order dated 2-8- 2002 passed by learned Trade Tax Tribunal on the application of waiver in second appeal No. 229 of 2002, have been challenged.
(2.) HEARD Sri Rakesh Ranjan Agrawal, learned Counsel for the petitioner as well as Sri B. K. Pandey, learned Counsel for the respondent/commissioner Trade Tax. By consent of the parties, the writ petition are decided at this stage under second proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952. It appears that the petitioner is engaged in the business of purchase and sale of goods and is merely handling the goods by taking out the same from Break-wan and keeping the same on platform. According to the petitioner the provisional assessment order passed by Respondent No. 2 on 24-1-2000 was challenged by the petitioner in writ petition No. 130 (Tax) of 2000 which was partly allowed and the petitioner were directed to file appeal against that consequently the Respondent No. 2 passed an best judgment assessment order on 27-3-2002 imposing penalty of Rs. 1,260,000 against which the petitioner preferred first appeal under Section 9 of the U. P. Trade Tax Act in short called Act before the appellate authority. The appellate authority granted stay to the extent of 95% to the disputed amount of tax for hearing the first appeal. Against such order the petitioner preferred second appeal before the Trade Tax Tribunal which directed on 26-6-2000 to deposit only 60000 and allowed the first appeal to be heard. The first appeal for the year 1999-2000 was dismissed on 29-6-2002. The petitioner preferred the second appeal under Section 10 of the Act alongwith the grounds of appeal, waiver application with affidavit in support thereof and the stay application. The Tribunal considered the facts and circumstances and contents narrated in the affidavit and has directed by its order on 2-8-2002 that by depositing only 5% of the disputed tax condition of depositing one third of disputed amount of tax for hearing the stay application preferred the second appeal shall be dispensed with.
(3.) IT has been contended on behalf of the petitioner that his financial condition is poor and he has no capacity to pay the tax therefore, the order dated 2-8-2002 should be set aside placing reliance on 2002 UPTC 690 (Heins India Private Limited v. Deputy Commissioner, Central Excise ). Where, this Court has held that while dealing with the dispensation of the pre-deposit of the duty, the prima facie case on merits has to be considered by the Commissioner (Appeals ). In 1998 (98) ELT 350 (Cal), Tata Iron & Steel Co. Ltd. v. Commissioner (Appeals) Central Excise Calcutta, it was held that one of the relevant factors which is required to be considered by the appellate authority under Section 35-F of the Act is prima facie case on merits and such other relevant factors pertaining to undue hardship while dealing the stay/dispensation of pre-deposit.;