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TMI Blog2014 (1) TMI 1520X X X X Extracts X X X X X X X X Extracts X X X X ..... er cases and have been uniformly applied, taking a different view, without indicating the factual difference and/or the special facts may lead to unsettle the settled proposition. From the show cause notice as well as the finding made by the Tribunal it would be evident that the authorities found that there is existence of a factory with plants and machinery. What is stated by the department is that the aforesaid plants, machinery and other infrastructure cannot support the manufacturing activities to such a large extent as has been shown by the petitioner to have been done during the relevant period. Therefore, in view of the aforesaid facts, this Court does not find that it could at all be said that there was never any manufacturing ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, for which CENVAT Credit is availed. The petitioner stated before the department that the factory is closed since February 2008 because of the financial and other stringencies. The proceeding culminated into an order imposing duties as well as penalties. The order is appealed before the Tribunal. An application, seeking waiver of the pre-condition deposit was disposed of by directing the petitioner to deposit 25% of the total liabilities imposed in the impugned order. Subsequently, an application for reconsideration and/or review is taken out which is also dismissed and the Tribunal, while doing so, held that the earlier order has not been complied with and directed the appeal to be dismissed on that score. Though the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submits that the Tribunal is bound to adhere to the earlier decisions of the Tribunal in the event the case is fully covered by the earlier decision of the Tribunal and any departure therefrom would entail the said orders and judgments unsustainable in law. In this regard reliance is placed on the Division Bench judgment of this Court in the case of J.N. Chemical Private Limited -vs- CEGAT, reported in 1991 (53) E.L.T. 543 (Cal) and of a co-ordinate Bench judgment in the case of Hindusthan Laminators Pvt. Ltd. -vs- C.C.E., Calcutta-1, reported in 2002 (141) E.L.T. 614 (Cal.). Mr. Dutta further strikes at the merit of the case of the department made against his client by citing various judgments of the Supreme Court on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had a good prima facie case so as to justify the dispensation of the requirement of pre-deposit of the disputed amount of duty and penalty in question. On the facts and in the circumstances of the case, there was full justification for the exercise of the power vested in the Tribunal to dispense with the requirement of pre-deposit inasmuch as the case of the appellant was fully covered by the decision of a Special Bench of the Tribunal and still to insist upon the deposit of duty demanded and penalty levied would indubitably cause undue hardship to the appellant. The power to dispense with such requirement is conferred on the Tribunal to be exercised precisely in cases like these and, if it is not exercised under such circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prior deposit of the duty will cause hardship to the petitioner and furthermore the said aspect has not been taken into account properly in my opinion by the CEGAT at the time of hearing of the modification application or the other application. Accordingly, in my opinion, the plea of financial hardship has to be taken into account by the Court for interest of the justice in favour of the petitioner and I do not have any hesitation to agree with the opinion expressed by the Hon ble Division Bench of this High Court in J.N. Chemical (Pvt.) Limited v. CEGAT reported in 1991 (053) ELT 543 where the Court has come to the conclusion which may be reproduced hereunder :- These judicial pronouncements of high authority show that even where enab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said facts, this Court does not find that it could at all be said that there was never any manufacturing activities undertaken by the petitioner in the said factory but leads to presumption that some manufacturing activities have been undertaken and in absence of any cogent and counter evidence it would further lead to a presumption that the closure was made, as has been contended by the petitioner. In view of the uniform stand of the Tribunal in granting total waiver of the pre-condition deposit in the event it finds that the factory is closed, this Court, therefore, feels that imposition of 25% of the duty demanded and the penalty levied by the Tribunal is unjustified and cannot be sustained. Furthermore, the Tribunal has not recorded a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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