Indira Banerjee, J. - (1.) IN this writ petition, the petitioners have challenged Order No. S -106 -107/KOL/2012, dated 15th February, 2012 whereby the learned Tribunal has directed the Petitioner -Company to pre -deposit 25% of the amount of duty confirmed within a period of 8 (Eight) weeks and report compliance failing which the appeal of the Petitioner -Company would stand dismissed. It is submitted that the appeal has been dismissed for non -compliance of the said order dated 15th February, 2012 as there was no interim order of this Court restraining the learned Tribunal from dismissing the appeal. The learned Tribunal recorded its finding that the Petitioner Company could not make out a case for total waiver of duty and penalty confirmed against them. The learned Tribunal also recorded that on a query from the Bench on the financial condition, the learned Advocate appearing for the Petitioner Company submitted that their factory had been closed since 2003 and its Managing Director had to leave the country to take up a job abroad. The learned Tribunal, however, observed that even though the petitioner -company was a Private Limited Company, the learned Advocate could not produce records like I.T. Returns, Balance -Sheet, etc. to substantiate the claim of the Petitioner -Company of financial hardship. The learned Tribunal therefore declined the prayer for full waiver of deposit. This Court is of the view that the learned Tribunal should have, for the ends of justice, given an opportunity to the Petitioner Company to produce the relevant records.
(2.) KEEPING in view the interest of the Revenue as well as the hardship expressed by the learned Advocate for the Petitioner -Company, the learned Tribunal directed the Petitioner -Company to make a pre -deposit of 25% of the amount of duty confirmed within a period of 8 (Eight) weeks and report compliance on 19th April, 2012. It is not understood on what basis the Petitioner -Company was directed to pre -deposit 25% of the amount of duty, if the learned Tribunal could not arrive at any definite finding with regard to its financial condition, in the absence of I.T. Returns, Balance -sheet and other relevant records. Moreover, having recorded the submission that the factory had been closed since 2003 it is difficult to appreciate how the learned Tribunal could have directed pre -deposit of 25% and in absence of any specific finding that the submission of closure was not correct. The impugned order cannot be sustained and the same is set aside and quashed. The order of dismissal of the appeal is also set aside. The learned Tribunal shall consider the prayer of the Petitioner -Company for stay afresh, in accordance with law after giving the Petitioner -Company an opportunity to produce documents, within four weeks from the date of communication of this order. It is made clear that this order will not preclude the learned Tribunal from taking up and disposing of the appeal itself should the learned Tribunal choose to do so, but after giving the Petitioner -Company and the Department a reasonable opportunity of hearing.
(3.) THE writ petition is thus disposed of.;