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TMI Blog2013 (1) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... sh D. Mehta (1988 (8) TMI 109 - SUPREME COURT OF INDIA) right to appeal under Section 129A of Customs Act, 1962, (corresponding to Section 35B of Central Excise Act, 1944), is not an absolute right and when it is subject to condition of pre-deposit under Section 129E the conditions prescribed for the same have to be satisfied. Thus, when for maintainability of an appeal filed under Section 35B, the condition of pre-deposit under Section 35F has to be satisfied, the provision of Section 35F would have to be complied with. In term of the provision of Section 35F, the requirement of pre-deposit can be waived only on the ground of “undue hardship”, for which the appellant have to establish that they have prima facie case in their favour, and there is likelihood of the final decision being in their favour. But in this case on the basis of the evidence on record, the judgments of the Tribunal and Hon’ble Utranchal High Court are against the appellant. In view of this, it cannot be said that the appellant have prima facie case in their favour - direct the appellant to deposit the full amount of duty demand confirmed against them within a period of eight weeks from the date of this ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, that the production was held up due to major maintenance and expansion work in the plant from 12-12-2002; and (e) RG-1 register of the appellant showed no production during period from 12-12-2002 to 14-1-2003 suggesting that expansion work was in progress. 1.2 The appeal filed by the appellant-company against Deputy Commissioner s order dated 15-6-2004 was allowed vide order-in-appeal dated 10-8-2004 of C.C.E. (Appeals) on the ground that while the major work of expansion was undertaken prior to 7-1-2003, the expansion work was complete only after 7-1-2003 i.e. on 14-1-2003 and, therefore, the appellant would be eligible for the exemption. 1.3 Against the above order dated 10-8-2004 of C.C.E. (Appeals), the Department filed an appeal before the Tribunal. In the meanwhile, during the period from June 2004 to March 2010 the appellant made clearances without payment of duty by availing full duty exemption under Notification No. 49/2003-C.E. The department issued from time to time, a total of eight show cause notices for demand of short paid duty amounting to Rs. 13,80,92,705/- along with interest. 1.4 The Department s appeal against C.C.E. (Appeals) s orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices for the subsequent period in the call book and should not have adjudicated the same, that in any case, in the circumstances of the case, there is no justification for penalty on the appellant-company under Section 11AC and on the Directors - Shri Vikas Jain and Shri Pankaj Gupta under Rule 26 of the Central Excise Rules, 2002 and that in view of this, the requirement of pre-deposit of duty demand, interest and penalty may be waived for the hearing of the appeals and recovery thereof may be stayed till the disposal of the appeals. 4. Shri I. Beg, the learned Departmental Representative, opposed the stay applications pleading that the issue involved in this case stands decided against the appellant not only by the Final Order No. 876/2009-EX (DB), dated 18-8-2009 of the Tribunal, this order has been upheld by Hon ble Uttranchal High Court vide judgment dated 9-4-2010, that though the appellants have filed SLP to Hon ble Supreme Court against the judgment dated 9-4-2010 of Hon ble Uttranchal High Court and the same has been admitted, there is no stay order passed by the Apex Court staying the operation of the judgment dated 9-4-2010 of Hon ble Uttranchal High Court, that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the list unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit. 7.1 On the basis of the above judgment of the Apex Court, it is pleaded that since appeal filed by the appellant against Hon ble Uttranchal High Court s judgment dated 9-4-2010 in respect of identical dispute for the previous period has been admitted by the Apex Court, in this case, the requirement of pre-deposit must be waived, as the judgment of High Court appealed against has to be treated as in jeopardy and cannot be said to have attained finality. After careful consideration of this plea of the appellant, we are of the view that mere admission of SLP by the Apex Court against the judgment dated 9-4-2010 of the High Court does not mean that the High Court s order has been stayed or has been reversed - all it means is that it is in jeopardy and its correctness or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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