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TMI Blog2011 (9) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the impugned order passed by the Customs, Excise and Service Tax Appellate Tribunal (in short the Tribunal) dated 15th March, 2011. 3. The argument advanced by the learned Counsel for the Appellant relates to interpretation of Section 35F of the Act. The brief facts giving rise to the present appeal are discussed hereinafter. 4. The Appellant is engaged in manufacture of goods classified under Tariff Heading 32.91 of the First Schedule to the Central Excise Tariff Act, 1985. The Appellant having been found to have committed certain irregularities in relation to the excise law, hence a Show Notice dated 30th January, 2009 was issued to the Appellant which was contested by them by filing reply dated 1st May, 2009. After receipt of reply, the Assistant Commissioner, Lucknow by the order dated 29th January, 2010 confirmed the demand to the tune of Rs. 4,86,472 while appropriating an amount of Rs. 4,86,500 already deposited by the Appellant and also ordered payment of interest on the said amount of duty, besides imposing equal amount of penalty. Further, 27775.00 kgs., plastic granules valued at Rs. 26,94,175 were ordered to be confiscated while giving option to redeem the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfactory case for modification of the said orders, the impugned orders came to be passed. In other words, it cannot be said that absolutely no hearing was granted on the issue regarding the requirement of pre-deposit of the amount due and payable under the order passed by the Adjudicating Authorities. It is not the case that the Commissioner (Appeals) has directed the Appellants to pay the entire amount payable under those order except in one case, and that too for justifiable reason. Besides, the requests for modification of those orders were rejected after hearing the parties and thereafter the appeals were dismissed. In fact, dismissal of the appeal is a consequence of non-compliance of requirement under Section 35F. There is no option left in that regard to the Appellate Authority unless the Appellants are able to make out a case to that effect and undisputedly opportunity to make out a case in that regard was granted to the Appellant. Being so, we do not find any illegality in the impugned orders nor it can be said that the orders which were passed on the stay applications are vitiated in any manner. 5. A plain reading of the aforesaid order reveals that decision of Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal in limine merely because the tax is not paid before the appeal is filed. 9. A plain reading of the observations made in Para 46 (supra), reveals that their lordship of Hon'ble Supreme Court opined that since the Appellate Authority is high authority not less than District Judge, (as then was) there is no reason why the Legislature should not trust such a high officer to exercise his discretion in such a way to safeguard the interests of both the Revenue and the Assessees. 10. The observations made by Hon'ble Supreme Court does not seem to extend any help. Even if the observations of the Hon'ble Supreme Court is taken into account, there is no reason to record a contrary finding than what has been recorded by the Tribunal for the reason that the Appellate Authority has exercised discretion to balance the right of parties while passing the order dated 1st June, 2010 in pursuance of the proviso to Section 35F of the Act. The provisions of Section 35F is reproduced as under:- 35-F. Deposit, pending appeal, of duty demanded or penalty levied. When in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed grievance against the original order passed under Section 35G of the Act at initial stage. Only at later stage, he moved ah application for waiving of 20 per cent with regard to pre-deposit of amount. At the face of record, it reflects that he was having no grievance against the original order passed by the Appellate Authority. In case, he had any grievance, he could have approached the higher forum against the original order passed under Section 35F of the Act. He represented with regard to subsequent order for waiving of 20 per cent deposit. The Appellate Authority has rightly rejected the application for waiving of 20 per cent deposit without providing opportunity of hearing. There is no other aspect of the matter. It is not a case, where the Appellate Authority had not applied its mind with regard to Appellant's undue hardship. In the present case, the Appellate Authority himself had directed the Appellant to deposit 20 per cent of the duty as well as penalty. It means the Appellate Authority himself has considered the Appellant's undue hardship on the basis of material on record. Accordingly, the ratio of the judgment of Hon'ble Supreme Court in the case of Benara Valves ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty demanded or penalty levied. The inference is that in case duty demanded or penalty not levied, is not deposited, it shall not be open to the Appellate Authority to hear the appeal on merit. 14. However, the provision is that subject to rider contained in proviso to Section 35F which provides that whenever in any particular case, the Commissioner (Appeals) or Appellate Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals), as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of revenue. The emphasis is to secure the interest of Revenue. The purpose of the provision is that while passing any order, it shall be incumbent on the Appellate Authority to ensure that tax imposed or penalty levied, in any case, be not frustrated and the Assessee may not escape the liability with regard to the payment of duty for any reason whatsoever. The proviso further provides that whenever an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty de ..... 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