9911796707
TMI Blog2013 (3) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... se Act, 1944, the appellant is aggrieved by an order dated 10.1.2013 passed by the Custom Excise and Service Tax Appellate Tribunal (CESAT), by which it has decided the application under Section 35 F of the Central Excise Act,1944 in the pending appeals and has directed the appellant to deposit Rs 1 Crore as against the recovery of Central Excise duty of Rs. 7,74,09,518 and equal amount of penalty. 3. The order has been challenged on the ground that the appellant's factory started its production in June 2007. There was no evidence to support the show cause notice and the order imposing excise duty. There was no foundation on the materials seized to form an opinion of prima facie suppression of production and clandestine removal from Januar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of suppression of production and clandestine removal based on search and seizure of the factory premises, plant machinery, power supply and other evidence of manufacturer. It was found that the appellant was clandestinely removing the finished goods to different destinations through road/railways transport. 8. The search at the godown resulted in recovery of 'Captain' brand cigarettes allegedly without invoice of appellant's company and the goods were seized. Search at the Baba Roadlines on 26.9.2007 were also conducted with recovery of 4000 packets of 'Perfect' brand belonging to M/s R.K.Cigarettes. The person incharge of the transport company admitted that the seized goods were received by him from the appellant company. In respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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