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TMI Blog2009 (9) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also held that there was no merit in the plea of to evade payment of duty, thus confirm the demand. Commissioner (Appeals) upheld the order of the adjudicating authority. Held that- once it is admitted that the petitioner had indulged in removal of goods without payment of duty, the obligation to remedy that defaults arise immediately, thus the writ petition, accordingly fails and dismissed. - 13426 OF 2009 - - - Dated:- 11-9-2009 - T.S. THAKUR AND KANWALJIT SINGH AHLUWALIA, JJ. Jagmohan Bansal for the Petitioner. JUDGMENT Kanwaljit Singh Ahluwalia, J. - Present writ petition is directed against an order dated 3-7-2009 passed by the Customs Excise Service Tax Appellate Tribunal, New Delhi (hereinafter refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal, present writ petition has been filed. 5. Petitioner, M/s. Mudhar Plywood Private Limited, village Dehkora, Sampla, District Rohtak (Haryana) is engaged in manufacture of plywood, block boards and flush doors, which fall under Chapter 44 of the First Schedule to the Central Excise Tariff Act, 1985. Petitioner company is registered with the Central Excise Department. Anti Evasion Branch of Central Excise Commissionerate, Rohtak, through their intelligence network, received information that petitioner company was removing its goods clandestinely and was evading Central Excise duty. As a consequence thereof, simultaneous searches were conducted at the factory premises, office, company godown and at the residence of two Directors of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.3,68,685 involved on the goods entered in Shipra Note Book and cleared without payment of duty and that the actual amount of duty on the goods entered in Shipra Note Book should be Rs.3,16,958 after taking into account-cum-duty price criteria and not Rs.3,68,685 and that it should be rectified. I find that duty amount of Rs.3,68,685 based on Shipra Note Book pertained to the finished goods removed without payment of duty from their factory. The duty demanded on the inputs, i.e. (Veneer) used in the finished goods and removed without payment of duty and the finished goods found short in the factory are nowhere mentioned in Shipra Note Book. It is not necessary that all the goods cleared without payment of duty from the factory are entere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner company, during course of arguments, has submitted that the petitioner is a small scale unit, having a turnover of less than Rs.3 crores per annum. The industry, in which the petitioner company is engaged, is passing through a difficult phase due to recession and there is acute shortage of funds and the company is not in a financial position to arrange the requisite amount. The petitioner company has pleaded financial hardship and relied upon two judgments of this Court in Shri Ainbika Steel Rolling Mills v. CCE 2006 (200) ELT 530 (Punj. Har.) and Sohana Woolen Mills (P.) Ltd v. CCE 2004 (170) ELT 526 (Punj. Har.) 9. We have given our due consideration to the submissions made by counsel for the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interests of the Revenue have to be kept in view. 12. As noted above there are two important expressions in section 35F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka 1993 (3) SCC 467 that under Indian conditions expression "undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be "undue' it must ..... X X X X Extracts X X X X X X X X Extracts X X X X
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