2006 (8) TMI 628 - HC - Central Excise

Summary

Issues Involved:
1. Validity of the CESTAT's order rejecting the waiver of pre-deposit of disputed duty.
2. Applicability of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) to the case.
3. Existence of an alternative remedy of appeal to the High Court under Section 35G of the Central Excise Act, 1944.
4. Assessment of financial hardship and prima facie case for waiver of pre-deposit.

Detailed Analysis:

1. Validity of the CESTAT's Order Rejecting the Waiver of Pre-Deposit:
The writ application challenges the CESTAT's order dated 17th March 2006, which denied the petitioner's request to waive the pre-deposit of disputed duty pending the hearing of Appeal No. ESM-369/05. The petitioner argued that they were entitled to deductions on freight and insurance charges and interest on receivables under Section 4 of the Central Excise Act, 1944. The CESTAT, however, required the petitioner to deposit Rs. 7,20,330 within eight weeks, failing which the appeal would be dismissed. The CESTAT's decision was based on the petitioner's inability to substantiate their claims with adequate documentary evidence and the financial condition of the petitioner company as reflected in its balance sheet.

2. Applicability of Section 22 of SICA:
The CESTAT rejected the petitioner's plea for waiver of pre-deposit under Section 22 of SICA, citing the Supreme Court's ruling in Metal Box India Ltd. v. CCD, Mumbai, which held that Section 22 of SICA does not apply to provisions of Section 35G of the Central Excise Act. The CESTAT observed that the petitioner had ample assets to discharge governmental dues, as indicated by the balance sheet.

3. Existence of an Alternative Remedy of Appeal to the High Court:
The respondent authorities raised a preliminary objection to the maintainability of the writ application, arguing that an alternative remedy of appeal to the High Court under Section 35G of the Central Excise Act, 1944, was available. Section 35G allows appeals to the High Court from orders passed by the Appellate Tribunal if the case involves a substantial question of law. The Court noted that not all orders of the Tribunal are appealable to the High Court, and an appeal lies to the Supreme Court against orders relating to the rate of duty or the value of goods for assessment. The Court emphasized that the availability of an alternative remedy must be equally efficacious and not unduly onerous.

4. Assessment of Financial Hardship and Prima Facie Case for Waiver of Pre-Deposit:
The Court highlighted that the right to appeal under Section 35F of the Central Excise Act is subject to pre-deposit of the disputed duty and penalty, with an exception for cases of undue hardship. The Tribunal is bound to exercise discretion in favor of the appellant if undue hardship is demonstrated. The Court referenced judicial pronouncements indicating that a strong prima facie case could itself constitute undue hardship. The petitioner's balance sheet indicated significant losses and secured loans exceeding the value of fixed assets, suggesting financial hardship. The CESTAT's failure to consider these factors and the prima facie merits of the case was criticized. The Court also noted that the CESTAT had not properly addressed the petitioner's financial hardship or the prima facie case, and the order directing the deposit of the entire disputed duty was deemed inappropriate given the petitioner's status as a sick industry under BIFR.

Conclusion:
The writ petition was allowed, and the impugned order of the CESTAT was set aside and quashed. The Tribunal was directed to reconsider the petitioner's request for waiver of pre-deposit, taking into account all relevant factors, including financial hardship and the prima facie case. The appeal was to be heard and disposed of expeditiously.