2014 (9) TMI 772 - AT - Central Excise

Waiver of the pre-deposit of Central Excise duty - manufacture of chewing tobacco - removal of chewing tobacco clandestinely without obtaining Central Excise registration - Held that - in dealing with such application twin requirement need to be examined, i.e. undue hardship relating to assessee and secondly safeguard the interest of Revenue. This principle has been echoed by the various High Courts including the Andhra Pradesh High Court in Sri Chaitanya Education Committee s case (2011 (1) TMI 356 - HIGH COURT ANDHRA PRADESH). Also mere financial hardship cannot be the criteria for total waiver of pre-deposit of dues adjudged in view of the ratio of Division Bench of Hon ble Punjab & Haryana High Court in the case Triveni Castings (P) Ltd. cited (2011 (2) TMI 170 - PUNJAB AND HARYANA HIGH COURT). Accordingly in view of the ratio laid down by the Apex Court and the various High Courts, and the interest of Revenue, and in the interest of justice, it would be appropriate to direct the pre-deposit of 50% by the Applicant pending disposal of the Appeal. - Partial stay granted.

Summary

Issues: Application for waiver of pre-deposit of Central Excise duty, interest, and penalty under Section 11AC of the Central Excise Act, 1944.

Analysis:
1. The application sought waiver of pre-deposit of a substantial Central Excise duty amount along with interest and penalty imposed on the assessee. The assessee, engaged in manufacturing chewing tobacco, was found to be removing goods clandestinely without proper registration or payment of excise duty, leading to a search operation and subsequent imposition of demand and penalty.

2. The appellant's representative did not contest the merit of the case but emphasized the young age and financial constraints of the proprietor, seeking full waiver of the pre-deposit. Reference was made to previous cases where pre-deposit conditions were waived due to factory closures or financial hardships, arguing for a similar treatment in this case.

3. The Revenue's argument highlighted the duty structure based on the number of machines and retail prices, emphasizing the non-disclosure of machine usage and duty payment by the appellant. The Revenue stressed the importance of safeguarding its interests and cited legal precedents to support the denial of total waiver based solely on financial hardship without proper evidence.

4. The Tribunal, considering the arguments from both sides, acknowledged the undisputed duty amount and the appellant's plea for stay of pre-deposit due to financial incapacity. While recognizing the need to balance undue hardship on the assessee and Revenue's interests, the Tribunal directed a 50% pre-deposit within a specified timeframe, citing guidelines from the Apex Court and various High Courts to ensure a fair resolution.

5. Ultimately, the Tribunal's decision to order a partial pre-deposit aimed to address the financial constraints of the appellant while upholding the principles of safeguarding Revenue interests and following legal precedents. Failure to comply with the pre-deposit requirement would result in the dismissal of the appeal without further notice, ensuring compliance with the directive.