1987 (9) TMI 54 - HC - Central Excise

Stay/Dispensation of prior deposit of duty and penalty - Rejection thereof - Undue hardship - Scope of

Summary

Issues:
1. Quashing of order by Customs, Excise and Gold (Control) Appellate Tribunal.
2. Mandamus for dispensing with pre-condition of deposit under Section 35F of Central Excises and Salt Act.
3. Consideration of financial capacity and undue hardship in waiver application.
4. Failure of Tribunal to record clear finding on undue hardship.
5. Direction to Tribunal for fresh consideration of waiver application.

Analysis:
The petitioner, a Small scale industrial unit, filed a writ petition seeking to quash the order passed by the Customs, Excise and Gold (Control) Appellate Tribunal and to direct the respondents to dispense with the pre-condition of deposit under Section 35F of the Central Excises and Salt Act. The respondent raised a demand of Rs. 24,86,658.74 for Central duty and penalty of Rs. 10,00,000. The petitioner applied for waiver, citing financial constraints. The Tribunal directed the petitioner to deposit Rs. 5,00,000 towards the duty. The petitioner argued that the Tribunal failed to consider the financial capacity and undue hardship as required by the proviso to Section 35F. The Court agreed, stating that the Tribunal should have recorded a clear finding on whether the petitioner would face undue hardship if the waiver application was rejected. Citing a previous decision, the Court held that the Tribunal's order was erroneous and quashed it.

The Court allowed the petition, quashed the Tribunal's order, and directed the Tribunal to reconsider the waiver application. The Tribunal was instructed to assess the petitioner's financial capacity to deposit Rs. 5,00,000 and determine if undue hardship would be faced if the waiver application was refused. The Tribunal was also directed to consider any additional materials provided by the petitioner. If the petitioner's financial position had deteriorated, the Tribunal was authorized to adjust the order accordingly. No costs were awarded in the matter.