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TMI Blog2013 (9) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... nd circumstances, has directed the Company to deposit only 50% of the duty and waived the pre requisite requirement of deposit of the balance amount of the duty, interest and the penalty Waiver of Pre deposit - The appellants were not able to make out a strong, prima facie case, which may warrant to allow complete waiver of the pre requisite requirement of deposit of the duty - We are further of the view that, having regard to the entire facts and circumstances, the order of the Tribunal directing to deposit 50% of the duty demanded and allowing the waiver of the balance amount of duty, interest and the penalty as also the waiver of the deposit of entire amount of penalty, the Director of the Company was wholly justified and does not suffer from any error and does not require any interference. - Central Excise Appeal No. - 224 of 2013, Central Excise Appeal No. - 225 of 2013 - - - Dated:- 10-9-2013 - Hon'ble Rajes Kumar And Hon'ble Manoj Misra,JJ. For the Appellant : Piyush Agrawal, Bharat Ji Agarwal For the Respondent : B. K. Singh Raghuvanshi ORDER These are two Appeals, under Section 35-G of the Central Excise and Salt Act, 1944 (hereinafter referred to as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,92,02,127/=, in respect of the clearance of the lube oil etc. during the period from 2006-07 to 2010-11 (October 2010), alongwith the interest thereon and also for imposition of penalty on the Company as well as on Sri Anant Bhargava, Director of the Company. Subsequently, another show cause notice , dated 29th November, 2011 was issued for the subsequent period from 1st November, 2010 to 31st August, 2011, raising a demand of duty to the tune of Rs.62,80,045/=, alongwith the interest thereon and also for imposition of the penalty on the Company as well as on its Director. The Company as well as the Director of the Company filed the replies to the show cause notice. The Commissioner, Central Excise, Ghaziabad vide its order dated 23rd February, 2012, treated the process undertaken by the Company, referred hereinabove, in respect of the waste oil as manufacturing, in terms of Section 2(f)(ii) of the Act, read with Note 4 of Chapter 27 of the Central Excise Tariff and upheld the total duty demanded at Rs.2,54,82,272/=, alongwith interest thereon, under Section 11-AB and besides it imposed a penalty of equal amount under Section 11-AC and further imposed a sum of Rs.10 Lakhs towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellants submitted that alongwith the Miscellaneous Applications, the Company has submitted a list of 257 such Units, which are involved in similar activities of processing, but they have not been subjected to any such duty on the oil obtained as a result of such processing. The list of such units is at pages from 125 to 169 whereas the appellant-Company has been subjected to duty. He submitted that the Central Excise Act is a Central Act and is applicable to all the manufacturing units across the country. It is not justified that some of the units be subjected to levy of the duty and some units be exempted. There should be uniformity in levy of the duty. In support of the contention, he placed reliance upon paragraph 105 of the decision of the Gujarat High Court in the case of Darshan Boardlam Ltd. v. Unionof India, reported in 2013 (287) E.L.T. 401. He submitted that in the case of Mineral Oil Corporation v. CCE, Kanpur, reported in 1999 (114) E.L.T., 166, similar activity has been held to be not amounting to manufacturing under Section 2(f) of the Act and the appeal filed by the Department against the order of the Tribunal has been rejected by the Apex Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Court in the case of Ketan v. Parekh, reported in AIR 2012 SC 683. We have considered rival submissions. It is a settled principle of law that it is upon the appellants to establish the case of undue hardship for waiver of the pre requisite requirement of deposit of the amount of duty, interest and the penalty. To consider the case of the 'undue hardship', a strong prima facie case and the financial hardship are to be examined. No argument has been either advanced or pressed by the learned counsel for the appellants in respect of financial hardship. It appears that this issue has not been raised before the Tribunal also as there is nothing either in the order dated 1st of October, 2012 or in the order dated 2nd of July, 2013 of the Tribunal in this regard and before this Court also in Appeal filed earlier, the financial hardship has not been pleaded. It would be appropriate to refer Tariff Entry 2710 and Note 4 of Chapter 27, which reads as follows: "Petroleum oils and the oils obtained from bituminous minerals, other than crude; preparations not elsewhere specified or included, containing by weight 70% or more of petroleum oils or of oils obtained from bituminous mineral ..... X X X X Extracts X X X X X X X X Extracts X X X X
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