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2008 (10) TMI 215 - HC - Central ExciseStay of recovery - pre-deposit - tribunal granted 50% stay - As per the law laid down by the Honorable Supreme Court it is incumbent on the part of the petitioner to establish that he would suffer undue hardship if the amount is recovered from him. Thus, the petitioner has not made out any case to dispense with the pre-deposit. However, the tribunal has taken a very lenient view to dispense with 50% of the amount demanded - Regarding maintainability of the writ petition, as pointed out by the Assistant Solicitor General, any order made under Section 35(F) is appealable to the High Court, which includes an order refusing to dispense with pre-deposit. But, the petitioner has not chosen to prefer any appeal and on this ground also the writ petition is liable to be dismissed
Issues:
1. Challenge to the direction to deposit 50% of the duty amount by the appellate tribunal. 2. Maintainability of the writ petition due to appealable order under Section 35(F) of the Central Excise Act. Analysis: 1. The petitioner challenged the directive to deposit 50% of the duty amount by the appellate tribunal in a writ petition. The petitioner contended that the tribunal did not consider the undue hardship faced, and raised various grounds asserting non-liability to pay the duty. However, the Assistant Solicitor General argued that the writ petition should be dismissed as the order is appealable, citing the Benara Valves Ltd. case. The court noted the petitioner's vague assertion of undue hardship without substantial evidence. Referring to the Supreme Court's judgment, the court highlighted the need for the petitioner to establish undue hardship. Despite the tribunal's leniency in requiring only 50% deposit, the court found no justification to interfere with the order, leading to the dismissal of the writ petition. 2. The court addressed the maintainability of the writ petition due to the appealable nature of orders under Section 35(F). The Assistant Solicitor General contended that any order under this section, including refusal to dispense with pre-deposit, is appealable to the High Court. Since the petitioner did not appeal the order, the court deemed the writ petition unsustainable on this ground as well. Consequently, the court dismissed the writ petition, vacated the interim order, and closed related motions without imposing costs.
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