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TMI Blog2012 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... r perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. Thus while safeguarding the interest of the revenue it has directed the appellant to deposit the entire amount of balance duty, except interest. - CE/735 of 2012 - - - Dated:- 18-9-2012 - Sunil Ambwani, And Aditya Nath Mittal, JJ. Petitioner Counsel :- A.P. Mathur Respondent Counsel :- S.P. Kesarwani 1. We have heard Shri A.P. Mathur, learned counsel appearing for the appellant-company. Shri S.P. Kesarwani appears for the Central Excise department and represents the respondents. 2. In this Central Excise Appeal under Section 35-G of the Central Excise Act, 1944, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders of the Commissioner (Appeals). In appeal the 50% of the duty amount was deposited in compliance with the provisions of Section 35F of the Act. 5. The Tribunal has considered the submission made on behalf of the appellant, that since the assessments in relevant year were provisional, hence show cause notice could not be issued for demanding duty. The Tribunal found that during the period in dispute show cause notices were issued from time to time for demand of differential duty by classifying the goods under sub heading 3920.31. Since the classification issue stands decided in favour of the department by the Apex Court and the dispute was only of technical nature, as to whether during the period of dispute there was any provisional a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der necessary. It is submitted that the procedure under Section 11A was not followed and that in view of judgment in Ravi Gupta vs. Commissioner of Sales Tax, Delhi 2009 (237) ELT 3 (SC) the Tribunal should not have passed a mechanical order directing the entire amount to be deposited as a precondition of the hearing of the appeal. 8. Shri S.P. Kesarwani has relied upon the principles laid down in Benara Valves Ltd v. Commissioner of Central Excise 2006 (204) E.L.T. 513 (SC), which was considered in Ketan V. Parekh v. Special Director, Directorate, Enforcement 2012 (275) E.L.T. 3 (SC). In this case, following Benra Valves Ltd v. Commissioner of Central Excise (2006) 13 SCC; 347 Siliguri Municipality v. Amalendu Das (1984) 2 SCC 436; and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in S. Vasudeva v. State of Karnataka 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. For a hardship to be "undue"; it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. The word "undue"; adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. The other asp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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