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TMI Blog2010 (3) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the Department to establish the production capacity of the appellants for such huge quantity of mosquito nets, taking into consideration the machinery available at their disposal, the authority below ignoring the same has proceeded to reiterate the demand against the appellants which was set aside at the first round of litigation by the Tribunal. Perusal of the impugned order, however, prima facie discloses that the authority below after taking into consideration not only the production capacity but entire evidence on record including the fact that the appellants have not been able to establish the actual purchase of such goods from various suppliers as was sought to be contended by the appellants and even the vehicles which were alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplier of the some of the mosquito nets to the appellants after being examined by the Department did not support the case of the appellants and rather denied the claim of the appellants regarding alleged supply of the mosquito nets to the appellant. Taking into consideration all these factors which have been considered by the adjudicating authority, we do not find prima facie case for total waiver of the duty demanded under the impugned order. 3. At this stage the learned Advocate for the appellants sought to rely upon the decision of the Delhi High Court in the matter of Super Tyres Pvt. Ltd., v. Union of India reported in 2005 (186) E.L.T. 49 (Del.) while contending that since this is second round of litigation the order which was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar the appellant without this pre-deposit condition as the Petitioner had already deposited a sum of Rs. 20 lacs which itself was considered by the Appellate Tribunal to be an adequate amount for compliance with the provisions of Section 35F of the Act. For the reasons afore-stated, we modify the order dated 25-10-2004 and direct the Tribunal to hear the appeal without enforcing the condition of a further deposit of Rs. 20 lacs . (Emphasis supplied) 5. It is also to be noted that the said order was delivered by the Hon ble High Court of Delhi on 10-1-2005. 6. Section 35F of the Act provides that where in an appeal under Chapter VI-A the decision or order appealed against relates to any demand of duty in respect of goods which are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e hardship which may result to the assessee if he is compelled to deposit the entire amount demanded under the order under challenge. The Tribunal in its discretion thereupon may pass an appropriate order in that respect subject to such conditions as it may deem fit to impose. Obviously, therefore, the order which is required to be passed in this regard by the Tribunal is essentially in its discretion. Undoubtedly, the discretion has to be exercised judiciously, and not arbitrarily. 8. As regards the order of the Hon ble High Court of Delhi is concerned, it specifically clarifies that the direction thereunder were in the circumstances of this case which means that the Hon ble High Court had not proceeded to lay down any law as such on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted for the period ending of the year 2007-08 showed gross profit of Rs. 58,28,114.78 and the net loss transferred to balance showed Rs. 1179499.15. The statement also disclose packing and forwarding expenses of Rs. 912352/-. It further discloses freight outward charges of Rs. 409679/-. It is not known why the appellants have placed on record the balance sheet for the year 2007-08 and has not produced such records for the subsequent years. In the circumstances, there is no cogent material produced on record to contend that any direction for deposit of further amount would result in financial hardship to the appellants. 11. Taking into consideration the facts and circumstances of the case, we are of the considered opinion that it would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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