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2011 (6) TMI 118 - HC - Central ExciseWaiver of pre-deposit - Notification 4/97 dated 1-3-1997 - mere fact that some part of the Naphtha has been used not for the production of the fertilizers but in the generation of electricity would not make any difference to the entitlement of the Appellant to the benefit of exemption notification - In that sense the Tribunal was not justified in launching upon a detailed investigation of the merits of the case of the Appellant which must await the final hearing of the appeal - The Appellant will be entitled to dispensation of the requirement of pre-deposit subject to the Appellant filing a general bond with the Assistant Commissioner of Central Excise that it would fulfil the demand that may arise upon final adjudication of the appeal - Decided in favour of the assessee
Issues Involved:
1. Whether a Public Sector Undertaking (PSU) of substantial worth and solvency can be required to make a pre-deposit under section 35F of the Central Excise Act, 1944. 2. Whether the Tribunal erred in not considering the prima facie case made by the Appellant regarding the use of Naphtha and natural gas for steam generation in the manufacture of fertilizers. Detailed Analysis: Issue 1: Pre-deposit Requirement for Public Sector Undertakings The Appellant, a PSU, challenged the Tribunal's order requiring a pre-deposit of Rs. 2 crores. The primary argument was that being a Central Government Undertaking, it should be entitled to a complete waiver of the pre-deposit requirement. The court examined Section 35F of the Central Excise Act, 1944, which mandates the deposit of duty demanded or penalty levied unless the Appellate Tribunal dispenses with the requirement due to undue hardship. The court held that the mere fact of being a Government Company under section 617 of the Companies Act, 1956, does not automatically justify a waiver of pre-deposit. A Government company has a distinct corporate personality and cannot be equated with the Union of India. The court emphasized that the Tribunal must judiciously evaluate each case to determine undue hardship, considering factors like the financial position of the company and the public interest involved in its activities. The court referenced several precedents, including Hindustan Petroleum Corpn. Ltd. v. Union of India, where the Tribunal was directed to consider the instructions of the Central Board of Excise and Customs (CBEC) and the solvency of the PSU. The court concluded that the Tribunal's discretion should not be constrained and must be exercised based on the specific circumstances of each case. Issue 2: Prima Facie Case on the Use of Naphtha and Natural Gas The Appellant argued that the Tribunal failed to consider its prima facie case regarding the use of Naphtha and natural gas for steam generation in the manufacture of fertilizers. The Appellant relied on a chart and annexure to the Show Cause Notice, which indicated that Naphtha was in short supply and steam was generated using natural gas. The Appellant also cited previous Tribunal proceedings that remanded the matter for recalculating the demand based on the submitted charts. The court noted that at the stage of considering a waiver of pre-deposit, the Tribunal should only determine whether a prima facie case exists, not conduct a detailed investigation into the merits. The court found merit in the Appellant's submission that the contention regarding the use of Naphtha and natural gas required serious consideration in the pending appeal. The Tribunal's detailed enquiry into the merits was deemed premature. Conclusion: The court set aside the Tribunal's order requiring the Appellant to deposit Rs. 2 crores. The Appellant was granted dispensation from the pre-deposit requirement, subject to filing a general bond with the Assistant Commissioner of Central Excise to fulfill any demand arising from the final adjudication of the appeal. The court emphasized the need for a judicious evaluation of undue hardship and the importance of considering the financial position and public interest activities of PSUs. The appeal was disposed of without any order as to costs.
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