2012 (7) TMI 604 - HC - Central Excise

Rejection of Application for waiver of pre-deposit in accordance with Section 35 F - Held that - To consider the issue of waiver of pre-deposit, the appellate Tribunal is required to apply its mind and record a definite finding as to whether in the given set of facts the assessee would suffer undue hardship if waiver of pre-deposit is not allowed - in the present case the Tribunal has not considered and has not recorded any finding with regard to the issue as to whether the petitioner would suffer undue hardship if he is made liable to deposit amount of Rs.100 Lakhs - mater deserves to be remitted back to the appellate Tribunal for deciding the application afresh - in favour of assessee.

Summary

Issues:
Challenge to the legality and validity of the order passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi against the order passed by the Commissioner, Customs & Central Excise, Raipur regarding waiver of pre-deposit under Section 35 F of the Central Excise Act, 1944.

Analysis:
The petitioner challenged the order dated 18/01/2012 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi, against the order dated 30th September, 2010 passed by the Commissioner, Customs & Central Excise, Raipur, seeking waiver of pre-deposit under Section 35 F of the Central Excise Act, 1944. The petitioner argued that the demand notice of Rs.135 Lakhs along with an equal amount of penalty was based on a pure interpretation of legal provisions, and as there was no allegation of tax evasion or concealment, he was entitled to the waiver of pre-deposit. The petitioner contended that the aspect of undue hardship to the assessee was not considered by the appellate Tribunal, rendering the impugned order invalid.

The counsel for the respondents argued that although the question of undue hardship was not explicitly addressed in the order, it could be inferred from a holistic reading of the decision. They maintained that the Tribunal had indeed considered all aspects before directing the petitioner to deposit Rs.100 Lakhs as a prerequisite for hearing the appeal on merits. The counsel referred to the case law to support their position, emphasizing the importance of balancing undue hardship to the assessee with safeguarding the interests of the Revenue.

Citing the case of Benara Valves Ltd. and Others Vs. Commissioner of Central Excise, the Court highlighted the twin requirements of considering undue hardship to the assessee and safeguarding the interests of the Revenue when dealing with applications for waiver of pre-deposit under Section 35 F. The Court noted that the Tribunal must assess whether the petitioner would suffer undue hardship if the waiver was not allowed, and emphasized the need to strike a balance between the petitioner's hardship and the Revenue's interests. It was observed that the Tribunal failed to consider and record a finding on whether the petitioner would endure undue hardship if required to deposit Rs.100 Lakhs.

In light of the Supreme Court's guidance in the Benara Valves Ltd. case, the Court concluded that the impugned order should be set aside. The matter was deemed fit for remittance back to the appellate Tribunal for a fresh decision on the petitioner's application for waiver of pre-deposit, in accordance with the legal principles established by the Supreme Court. The Court stressed the necessity for the Tribunal to diligently assess undue hardship and Revenue interests before making a determination on the waiver request.