2014 (11) TMI 743 - HC - Central Excise

Maintainability of appeal - Dismissal of appeal - Non compliance with pre deposit order - Held that - How mere closure or then taking over by the financial institution ipso facto is sufficient to demonstrate undue hardship. In the light of material produced before us, we find that there is no jurisdictional error or perversity in the application of mind by the CESTAT. However, CESTAT has thereafter proceeded further, noted adjudication by this Court in the case of another unit and asked the present appellant to deposit 25% of the duty within eight weeks. The appellant has sought waiver of duty of ₹ 3,09,23,873/- plus interest and penalty. Thus, the order-in-original, which required him to pay equal amount as penalty and then interest with further penalty, has been substantially modified by the CESTAT. No error or perversity in the impugned order. As the dismissal of appeal is automatic and on account of failure to comply with said order of pre-deposit, the challenge to order dismissing the appeal for said failure also cannot be sustained. We find no substantial question of law arising in the appeal - Decided against assessee.

Summary

Issues:
Appeal under Section 35G of the Central Excise Act, 1944 questioning an order directing pre-deposit, non-application of mind by Customs, Excise & Service Tax Appellate Tribunal (CESTAT), undue hardship for waiver under Section 35F, jurisdictional error, dismissal of appeal for non-compliance, and interim protection sought.

Analysis:
The appeal filed under Section 35G of the Central Excise Act, 1944 challenges an order directing the appellant to deposit 25% of the duty as pre-deposit under Section 35F, with subsequent dismissal of the appeal for non-compliance. The appellant argues that CESTAT failed to apply its mind properly, citing judgments emphasizing the need to demonstrate undue hardship for waiver under Section 35F. The appellant's unit being closed and taken over by a financial institution was not considered, leading to a plea for setting aside the order due to non-application of mind.

The respondent opposes the application, stating no substantial question of law arises, and argues that the CESTAT's order was not erroneous, considering the material presented. The respondent highlights the precedent where CESTAT directed deposit of only 25% of duty amount, modifying the initial waiver sought, which was in excess of Rs. Three crores. The respondent contends that the CESTAT's decision was in line with the law and previous judgments.

The judgment of the Hon'ble Apex Court in Benara Valves Ltd. v. Commissioner of Central Excise underscores the need to demonstrate undue hardship for waiver under Section 35F, requiring excessive or greater hardship than warranted by circumstances. The Division Bench judgment in Universal Ferro & Allied Chemicals Ltd. v. CESTAT echoes similar sentiments, emphasizing the need to show undue hardship for dispensation of pre-deposit. The failure to produce the application seeking waiver under Section 35F is noted, with the CESTAT considering the closure of the appellant's unit and its takeover by a financial institution as a factor indicating undue hardship.

The High Court finds no error or perversity in the CESTAT's decision, as the appellant was directed to deposit 25% of the duty amount within a specified time frame. The dismissal of the appeal due to non-compliance with the pre-deposit order is upheld, with no substantial question of law found. The appeal is dismissed, with no costs awarded. The appellant's request for interim protection is opposed by the respondent, and the High Court does not pass any interim orders, allowing the appellant to make representations to Respondent No. 2 for consideration in accordance with the law.