2008 (7) TMI 413 - HC - Central Excise

Stay/Dispensation of pre-deposit - Sick unit - Held that - In the background of the facts and findings recorded by the Tribunal, it is apparent that the Tribunal has correctly addressed itself to the issue of financial hardship as well as the fact that the petitioner has been declared a sick industrial unit by the BIFR and has therefore, directed pre-deposit of only about 50% of the duty demand. In the circumstances, the contention advanced by the learned Counsel for the petitioner that the Tribunal has not addressed itself to the issue of the petitioner having been declared as a sick industrial unit by the BIFR does not merit acceptance. Thus no infirmity in the order of the Tribunal so as to warrant any intervention by this Court.

Summary

Issues:
1. Petition challenging an order passed by CESTAT, Ahmedabad.
2. Demand of Central Excise duty, interest, and penalty on a registered export oriented unit.
3. Appeal under section 35B of the Central Excise Act along with a waiver application under section 35F.
4. Consideration of financial hardship and sick industrial unit status by BIFR for waiver of pre-deposit.
5. Tribunal's decision on the waiver of pre-deposit and stay of recovery.
6. Interpretation of provisions regarding undue hardship and safeguarding revenue's interest.
7. Comparison with relevant legal precedents for granting waiver of pre-deposit.
8. Judicial review of Tribunal's decision by the High Court.

Analysis:
1. The petitioner, a registered export oriented unit manufacturing Dyed Polyester Filament Yarn, challenged a demand for Central Excise duty, interest, and penalty by the CESTAT, Ahmedabad. The respondent confirmed the demand and imposed penalties, leading to the petitioner's appeal under section 35B of the Central Excise Act and a waiver application under section 35F seeking relief from pre-deposit requirements.

2. The petitioner contended that being declared a sick industrial unit by the BIFR with accumulated losses, full waiver of pre-deposit should be granted. The Tribunal, however, directed the petitioner to deposit a significant sum towards duty, considering the evidence of clandestine removal and financial aspects. The Tribunal's decision highlighted the strong prima facie case against the petitioner and the need for partial pre-deposit.

3. The High Court analyzed the Tribunal's decision in light of the petitioner's sick industrial unit status and financial hardship. Referring to legal precedents, the Court emphasized the need to balance undue hardship to the party and safeguarding revenue's interest while deciding on pre-deposit waivers. The Court upheld the Tribunal's order, noting that the petitioner's circumstances were adequately considered, and a partial pre-deposit was justified.

4. Drawing parallels with a similar case, the Court rejected the petitioner's argument for full waiver based on being a sick industrial unit. The Court found no infirmity in the Tribunal's order and dismissed the petition, granting the petitioner a limited time to comply with the Tribunal's directions. The judgment emphasized the importance of considering all relevant factors, including financial hardship and legal precedents, in determining pre-deposit requirements in excise duty cases.