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TMI Blog2014 (1) TMI 1571X X X X Extracts X X X X X X X X Extracts X X X X ..... an be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved - 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. Where the petitioner itself knowing about the interim order dated 25-3-2011 passed in its own case and did not just choose to rely upon the said interim order before the Tribunal and invited a detailed order on merits, wherein, in fact the case has been considered on the facts of the case in hand, of the writ petitioner, which is not the position in the order dated 25-3-2011, then no interference is required. However, it is necessary to maintain the judicial discipline by following even the interim order, which has been passed but earlier order had different fat situation, wherein that aspect of the matter has not been taken into consideration and different view also can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up for consideration before the Apex Court in the case of Ujagar Prints, etc. v. Union of India and Others reported in 1988 (38) E.L.T. 535 (S.C.) and not only this, in view of the statutory deeming clause, as given in Chapter 87 of the Central Excise Tariff Act, 1985, Note 5, the body builder is the manufacturer and, therefore it is deemed manufacturer and is liable to pay the excise duty under Section 3, which is a charging section. It is submitted that Section 3 indicates that the excise duty is payable by manufacturer irrespective of the fact, who is the owner of the said product. Learned counsel for the writ petitioner also drew our attention to yet another order passed by the same Customs, Excise and Appellate Tribunal, East Region Bench, Kolkata dated 25-3-2011, wherein by brief order the petitioner-appellant was permitted to prefer appeal without payment of the pre-deposit for preferring appeal. 5. Learned counsel for the Revenue submitted that the authorities have considered the facts of the case in hand and gave detailed reasons for not waiving the complete payment of the duty. It is submitted that even the Hon ble Supreme Court in the case of Benara Valves Ltd. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the body builders; the body builders are required to pay duty on the completely built-up vehicle only after the set-off of Cenvat credit on chassis and the unutilized Cenvat credit would belong to M/s. Tata Motors, the Applicant. The said condition apparently raises a doubt and leads to an inference that the nature of dealings between the Applicant and the job-worker are not on principal-to-principal basis. The learned counsel during the course of arguments explained that the Cenvat credit availed by the body builders had never been paid back to the Applicant. But that issue is a question of fact, and assuming that even if it was not paid back to the Applicant, the Applicant continued to have a right over the accumulated credit lying in the books of the body builders. On the aspect of limitation, we find that in the letter dated 17-3-2003 written by the applicant to the Department, it is silent on the right of the Applicant over the unutilized Cenvat credit accumulated in the books of the body builders. In the aforesaid circumstances, we are of the opinion that prima facie, the Applicant could not make out a case for complete waiver of the entire duty and penalty. There is no f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factual scenario involved. The Hon ble Supreme Court also observed that 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. 9. In view of the above reasons also and looking into the detail facts of the case with the judgments, which have been relied upon by the learned counsel for the petitioner and considered by the Tribunal while passing a detail reasoned order in contrast to the brief interim order passed by the same Tribunal in S.P.-459-594/2009 in Excise Appeal Nos. 383/2009 and 425/2009 by the order dated 25-3-2011, we do not find any justification to interfere in a matter, where the petitioner itself knowing about the interim order dated 25-3-2011 passed in its own case and did not just choose to rely upon the said interim order before the Tribunal and invited a detailed order on merits, wherein, in fact the case has been considered on the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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