1. Shri Shrijee Sales Corpn., Atlanta, Nariman Point, Bombay 400021 has filed a stay application requesting for the grant of stay for the payment of penalty of Rs. 1,28,000/-.
2. Shri S.D. Nankani, the learned advocate has appeared on behalf of ihe applicant. He has filed another petition dated 19th April, 1985 wherein tt has been stated that the Asstt. Collector of Customs Appraising Group I has passed Recovery Order on 27th March, 1985 under Section 142 of the Customs Act, 1962. The application is also attached with the zerox copy of the said Recovery Order. The learned advocate has argued at length and has pleaded that the applicant is ready to furnish a bank guarantee for Rs. 1,28,000/-. He has also pleaded that if necessary this Court should exercise its inherent powers in view of the Hon'ble Supreme Court's Judgment in the case of l.T.O. v. Md. Kunhi reported in AIR 1969 SC 430. The learned advo cate has pleaded that if the stay is not granted, the applicant will suffer an irreparable loss.
He has further pleaded that the operation of Recovery Order passed by the Asstt. Collector of Customs, Appraising Gr. I may also be stayed.
3. In reply, Shri A.K. Sarkar, the learned S.D.R. has pleaded that the revenue's interest needs be safeguarded. He has referred to the provisions of Section 129E of the Customs Act, 1962. He has pleaded that the appellant should be permitted to make a part payment in cash and for the balance amount, bank guarantee may be furnished.
4. After hearing both the sides and going through the facts and circum stances of the case, we hold that it is a case of undue hardship.
Keeping in view the facts and circumstances of the case, we dispense with the pre-deposit of the penalty of Rs. 1,28,000/- and grant the stay on the condition that the applicant deposits 30% of the penalty amount in cash viz. Rs. 38,400/ (Rupees thirty-eight thousand four hundred only) and furnish a bank gua rantee for the balance amount of Rs. 89,600/- (Rupees eighty-nine thousand six hundred only). The applicant is to comply with the terms of this order within four weeks from 19th April, 1985. Keeping in view the Hon'ble Supreme Court's Judgment in the case of I.T.O. v. M.K. Mohd. Kunhi reported in AIR 1969 SC 430, we hold that this Tribunal has power to grant stay as incidental and ancillary to its appellate jurisdiction and it is a fit case where this Court should exercise its power. We direct the stay of the Recovery Order dt. 27-3-85 passed by the Asstt. Collector of Customs, Appraising Gr. I, Calcutta. It is further directed that the revenue will not pursue the recovery proceedings during the pendency of the appeal. In case the applicant fails to comply with, the terms of this stay order, the stay order shall stand automati cally vacated and the applicant is to report the compliance of this order to this Court.
Announced in open Court.