2015 (7) TMI 959 - HC - Central Excise

Waiver of pre deposit - Undue hardship - Held that - For waiver of the pre-deposit, the appellant is required to show undue hardship that would be caused, in the event, they are required to deposit the amount. In the instant case, we find that no agreement has been raised with regard to hardship. However, prima facie, we find that once the authority permitted the appellant to cross-examine the witnesses, the same should have been done unless further orders denying such cross-examination was passed - appeals directing the appellant to deposit 30% of the duty within four weeks - If the amount is deposited, the Tribunal will ensure and decide the appeal within one year. - Decided conditionally in favour of assessee.

Summary

Issues involved:
1. Opportunity of hearing before passing the order in original.
2. Cross-examination of witnesses.
3. Waiver of pre-deposit under Section 35-F of the Central Excise Act, 1944.
4. Appellant's contention regarding undue hardship.
5. Direction for deposit and timeline for appeal resolution.

Opportunity of hearing before passing the order in original:
The appellant contended that proper opportunity was not provided by the Commissioner before passing the order in original. Despite a request to file a detailed reply after cross-examining witnesses, the order was passed without further opportunity. The appellant argued that if allowed to cross-examine all witnesses, the outcome would have been different. The court noted that while some witnesses were permitted for cross-examination, the process was incomplete. The appellant's request to cross-examine remaining witnesses was not addressed, leading to the passing of the impugned order without full hearing.

Cross-examination of witnesses:
The appellant requested to cross-examine witnesses to present their case effectively. Although some witnesses were allowed for cross-examination, the process was not completed as per the appellant's request. Letters were sent to authorities requesting to cross-examine remaining witnesses, but no action was taken. The court emphasized that once permitted, cross-examination of witnesses should have been completed unless explicitly denied.

Waiver of pre-deposit under Section 35-F of the Act:
For waiver of pre-deposit, the appellant needed to demonstrate undue hardship. The court noted that no arguments were presented regarding hardship. However, it was observed that once the authority allowed cross-examination of witnesses, it should have been completed unless explicitly denied. The court directed the appellant to deposit 30% of the duty within four weeks, considering the circumstances.

Appellant's contention regarding undue hardship:
The appellant failed to raise any arguments regarding the undue hardship that would be caused if required to deposit the amount. Despite this, the court noted that the appellant should have been allowed to complete the cross-examination process as permitted by the authority. The court directed the appellant to deposit 30% of the duty within a specified timeline.

Direction for deposit and timeline for appeal resolution:
The court disposed of the appeals by directing the appellant to deposit 30% of the duty within four weeks. It was further specified that if the amount is deposited, the Tribunal should ensure and decide the appeal within one year. The court clarified that any observations made in the order should not be considered a final opinion in the matter.