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TMI Blog2014 (5) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent. ORDER Heard finally with the consent of learned counsel for the parties. 2. Since facts and question of law involved in these appeals are common, as agreed by the learned counsel for the parties, we intend to dispose off these appeals by common order. 3. These Excise Appeals are directed against interim order passed by the Customs, Excise Service Tax Appellate Tribunal, New Delhi, whereby, while disposing off the application to deposit pre-deposit amount/stay application, the Tribunal has directed the appellants to deposit 25% of duty demand and stayed/waived the recovery of remaining amount of duty as well as penalty, during pendency of the appeals before the Tribunal. 4. For convenience, we are giving the facts of D.B. Excise Appeal No. 39/2012-M/s. Savitri Concast Ltd. v. Commissioner of Central Excise, Jaipur-I Jaipur Anr. 5. This appeal is directed against the impugned order of Custom, Excise Service Tax Appellate Tribunal, New Delhi, dated 23-10-2012, whereby stay application filed by appellant, has been disposed off and appellant has been directed to deposit 25% of duty demand during pendency of the appeal and remaining amount of duty as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant under proviso to Section 11A(1) of Central Excise Act, 1944 along with interest on this duty under Section 11AB, also imposed a penalty of equal amount on the appellant-Company under Section 11 AC and penalty of Rs. 25,00,000/- was also imposed on Shri Harish Aggarwal, Director of the appellant-Company. 9. Being aggrieved with the above order of Commissioner, Central Excise, Jaipur, the appellant filed an appeal before the Appellate Tribunal along with stay application. The appeal remained pending since 2009. It appears that arguments were not advanced on the stay application or the application for waiver to deposit pre-deposit amount, therefore, the Appellate Tribunal, vide its order dated 29-11-2011, passed an order, on interim basis for interim deposit. The appellant-Company was directed to deposit Rs. 10,00,000/- (Rs. Ten lacs) as an interim measure. Shri Harish Aggarwal Director of M/s. Savitri Concast Ltd. was directed to deposit Rs. 5,00,000/- (Rs. Five lacs) within four weeks and compliance was to be reported on 27-1-2012. 10. Thereafter, arguments were heard on the stay application and the Appellate Tribunal, vide its order dated 23-10-2012, directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Appellate Tribunal and submitted that during search of M/S. Shree Sharma Steel Rolling Mills Pvt. Ltd., incriminating evidences were recovered, connecting the appellant in evasion of excise duty. M/S. Shree Sharma Steel Rolling Mills Pvt. Ltd., also filed an appeal, being aggrieved with the duty demand and the Tribunal passed an interim order on the stay application, which was challenged by M/S. Shree Sharma Steel Rolling Mills Pvt. Ltd, by way of filing writ petition before this Court, which was dismissed. Thereafter, M/S. SSSRM filed special Leave Petition before the Hon ble Supreme Court and the same was also dismissed as withdrawn. Thereafter, review petition was filed by M/S. SSSRM before this Court, which was also dismissed. In these circumstances, the present appeal, being similar with M/S. SSSRM, is liable to be dismissed, being covered by the order passed by this Court in the case of M/S. Shri Sharma Steel Rolling Pvt. Ltd. Others v. Union of India Others. 15. Learned counsel for respondents also submitted that in similar Circumstances, this Court dismissed D.B. Civil Writ Petition No. 1557/2012-Shree Cement limited v. The Commissioner (Appeals-II) Ors., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd from the impugned orders and various documents placed on record, that there were other evidence available on the record, which have been referred by the Appellate Tribunal, which were made the basis for issuing/raising the demand. Para 6 of the order dated 23-10-2012 passed by the Appellate Tribunal, impugned in D.B. Excise Appeal No. 39/2012 - M/s. Savitri Concast Ltd. v. Commissioner of Central Excise, Jaipur-1, Jaipur Anr., is reproduced as under :- 6. Though in this case, the duty demand during the period from February, 2002 to September, 2006 has been confirmed on the basis of assumption that average power consumption for production of 1 M.T. of M.S. Ingots is 689 units, we also find that the documents recovered from the premises of SSSRM clearly indicate that the appellant unit was making clearances to M/s. SSSRM without payment of duty and without issue of invoices. It is seen that while during period from July, 2005 to September, 2005 M/s. SSSRM had received 1188.07 M.T of M.S. Ingots, the invoices had been issued by the appellant company only for a quantity of 727 M.T. and about 461 M.T. of M.S. Ingots had been cleared without payment of duty. Beside this, the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was raised and against the order passed on stay application, writ petition was preferred before this Court, which was dismissed. Thereafter, Special Leave Petition was also dismissed as withdrawn, with liberty to file review petition. Thereafter, review petition was filed before this Court and the same was also dismissed. Therefore, the present matters are substantially covered by the order passed by this Court in M/s. Shree Sharma Steel Rolling Mills Pvt. Ltd. Others v. Union of India Others. 22. In similar circumstances, a Co-ordinate Division Bench of this Court also rejected the writ petition, directed against the interim order passed on the stay application, in Shree Cement Limited v. The Commissioner (Appeals-II) Ors. (supra), decided on 21-2-2012. Order dated 21-2-2012 is also reproduced as under :- By way of filing this writ petition, interim order dated 29-12-2011 passed by the Commissioner (Appeals-II), Customs Central Excise under Section 35F of the Central Excise Act has been questioned. The question involved was that whether the appellants are entitled for credit to the extent of input/input service used in the production of electricity which was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant under the said provision. We are afraid, we cannot accept the contention of the learned counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act. 10. Principles relating to grant of stay pending disposal of the matter before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially. 11. The applicable prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and safeguard the interests of revenue . Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 15. As noted above there are two important expressions in Section 129E. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to he established by him. A mere assertion about undue hardship would not be sufficient. It was note by this Court in S. Vasudeva v. State of Karnataka and Ors.: [1993] 2 SCR 715 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. 16. For a hardship to be undue it must be shown that the particular burden to have 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. 17. The above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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