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TMI Blog2012 (7) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the appellate Tribunal for deciding the application afresh - in favour of assessee. - W P T No 21 of 2012 - - - Dated:- 27-6-2012 - SHRI PRASHANT KUMAR MISHRA, J. Shri Neelabh Dubey counsel for the petitioner Shri Manish Sharma Standing Counsel for respondents Judgement ORAL ORDER In this writ petition under Article 226 of the Constitution of India the petitioner has called in question the legality and validity of the order dated 18/01/2012 passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi which in turn has been preferred against the order dated 30th September, 2010 passed by the Commissioner, Customs Central Excise, Raipur. (2) Facts of the case, in nutshell, which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal on merits. (5) In the matter of Benara Valves Ltd. and Others Vs. Commissioner of Central Excise and another reported in (2006) 13 SCC 347 it has been held thus in paragraphs 11 to 16 :- "11. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of the Revenue". Therefore, while dealing with the application twin requirements of consideration i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of the Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35-F. One is under hardship. This is a matter within the special knowledge of the applicant for waiver and has to be e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence to material on record." (6) In view of what has been settled by the Hon'ble Supreme Court in the matter of Benara Valves Ltd. (supra) it appears to this Court that to consider the issue of waiver of pre-deposit, the appellate Tribunal is required to apply its mind and record a definite finding as to whether in the given set of facts the assessee would suffer "undue hardship" if waiver of pre-deposit is not allowed. It is also to be seen that while considering "undue hardship" the Tribunal or for that matter the Court has to strike a balance between the undue hardship which the petitioner may suffer and the interest of revenue, however, in the present case the Tribunal has not considered and has not recorded any finding with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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