2015 (10) TMI 724 - HC - Central Excise

Waiver of pre deposit - Section 35F - Held that - At the prima facie stage, the Court is not required to minutely and meticulously scrutinise each and every document produced. Suffice to state that once there is an order under challenge before the appellate authority then so long as it is not set aside and by a final adjudication, the appellate authority would not be justified in ignoring the findings in the order impugned before him. At the prima facie stage, all that the Authority was expected to find out is as to whether the duty has been demanded by relying on the relevant and germane material. It may be that the findings and conclusion in the order under appeal may be ultimately set aside but so long as they are not set aside, they cannot be completely brushed aside. - prima facie case to the extent noted is not made out, as the entire exemption of duty was not available, that the Commissioner (Appeals) directed the petitioner to deposit a sum of ₹ 35,00,000 - We do not find that the condition of pre-deposit as imposed is vitiated - Decided against assessee.

Summary

Issues:
1. Refusal to grant an unconditional stay on the amount of duty and penalty demanded.
2. Financial hardship of the petitioner.
3. Onerous and arbitrary conditions for stay of the order.
4. Compliance with the order of the Commissioner.
5. Prima facie case and balance of convenience.
6. Findings of the appellate authority.
7. Jurisdiction of the Court in interlocutory matters.
8. Condition of pre-deposit.

Analysis:
The judgment by the High Court of Bombay pertains to a writ petition challenging the order passed by the Commissioner (Appeals) under Section 35F of the Central Excise Act, 1944, refusing to grant an unconditional stay on the duty and penalty demanded. The petitioner argued financial hardship and the imposition of unreasonable conditions for stay, highlighting the inability to comply with the order due to financial constraints. The Court emphasized that at the interim stage, the focus is on determining if a strong prima facie case exists and where the balance of convenience lies.

Regarding the documents presented by the petitioner, the Court noted that it cannot delve into the merits of the case pending before the appellate authority. The appellate authority had previously confirmed the duty demand, interest, and penalty. The Court stressed that unless the order under challenge is set aside, the appellate authority cannot disregard the findings. The Commissioner (Appeals) had directed the petitioner to deposit a specific amount, which the Court found not to be vitiated by perversity, leading to the dismissal of the writ petition.

The Court clarified that in interlocutory matters, interference is limited unless jurisdiction principles are not followed or the remedy is illusory. The judgment emphasized that the Court will not substitute its opinion with that of the Commissioner (Appeals) merely because a different view is possible. Ultimately, the Court found no grounds for interference in the writ jurisdiction, leading to the dismissal of the petition.