2014 (3) TMI 417 - HC - Central Excise

Waiver of pre-deposit - undue hardship - Held that - A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (1993 (3) TMI 350 - SUPREME COURT OF INDIA) that under Indian conditions expression Undue hardship is normally related to economic hardship. Undue which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. If a litigant has got strong prima facie case, then the same can be treated within the fold of undue hardship. But, there are no guidelines in which cases and when undue hardship relatable to prima facie case can be perceived. According to us, it depends upon each and every individual case. Without laying down any exhaustive guidelines, we think that following will be useful for adjudicating the application for waiver of full deposit by the Commissioner as well as this Court - Commissioner has exercised his jurisdiction judiciously as we notice it is in the category of arguable case and the condition of pre-deposit of 50% of the duty demanded is not unjustified. We think that to meet the ends of justice, time granted by the learned Commissioner for depositing of the amount of pre-deposit should be extended. - Decided partly in favour of assessee.

Summary

Issues:
- Refusal of full waiver of pre-deposit by the Commissioner
- Examination of the Commissioner's finding
- Legal provisions for waiver of pre-deposit
- Interpretation of Section 35F of the Central Excise Act, 1944
- Consideration of undue hardship and safeguarding revenue
- Criteria for adjudicating applications for waiver of full deposit
- Exercise of jurisdiction by the Commissioner
- Extension of time for depositing the pre-deposit amount

Refusal of Full Waiver of Pre-Deposit by the Commissioner:
The judgment addresses a writ petition against the Commissioner's decision to refuse full waiver of pre-deposit requested by the petitioner. The Commissioner found that the petitioner did not present a reasonably strong case on merit, leading to the need for examination of whether such a finding was justifiable.

Examination of the Commissioner's Finding:
The Court deliberated on the adequacy of the reasons provided by the Commissioner for the decision. While acknowledging the presence of reasons, the Court noted a lack of elucidation. It was emphasized that undue financial hardship is a key aspect for waiver of pre-deposit, as established in legal precedents.

Legal Provisions for Waiver of Pre-Deposit:
The judgment highlighted Section 35F of the Central Excise Act, 1944, which mandates the deposit of duty demanded or penalty levied pending appeal. The section allows for dispensation of such deposit in cases of undue hardship, with conditions to safeguard the revenue.

Interpretation of Section 35F of the Central Excise Act, 1944:
The Court elucidated on the expressions "undue hardship to such person" and "safeguard the interests of Revenue" within Section 35F. It emphasized the need for considering both undue hardship and revenue protection when adjudicating applications for waiver of deposit.

Criteria for Adjudicating Applications for Waiver of Full Deposit:
The judgment outlined criteria for determining when full waiver of deposit is justified. Strong prima facie cases where jurisdiction is lacking or laws are misapplied warrant full waiver. Cases with arguable points may require partial deposit, while cases lacking debatable aspects necessitate full deposit.

Exercise of Jurisdiction by the Commissioner:
The Court concluded that the Commissioner's decision fell under the category of an arguable case, justifying the 50% pre-deposit requirement. To ensure justice, the Court extended the time for depositing the amount and scheduled the appeal hearing accordingly.

Extension of Time for Depositing the Pre-Deposit Amount:
In the interest of justice, the Court extended the time for making the pre-deposit by one month from the date of the order copy receipt. The judgment dismissed the writ petition and any related applications, with no costs imposed. The Court emphasized that no decision was made on the merits of the case, keeping all points open for future consideration.