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TMI Blog2014 (5) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... granted waiver of the pre-deposit. - However, time period to make pre deposit is extended - Decided partly in favour of assessee. - Special Civil Application No. 16257 of 2012 with SCA Nos. 16264-16265 of 2012 - - - Dated:- 6-12-2012 - Akil Kureshi and Sonia Gokani, JJ. Shri Paresh M. Dave, Advocate, for the Petitioner. ORDER The petitions arise in common background. They have, therefore, been heard together and are being disposed of by this common order. 2. We may record facts as arising in Special Civil Application No. 16257 of 2012. Petitioner herein is a company registered under the Companies Act and is engaged in the activity of manufacturing, moulding and sale of various plastic articles. The petitioner, as part of its business activity, had manufactured air-coolers for and on behalf of one Symphony Limited. The Central Excise authorities, upon intelligence, carried out detailed investigation with respect to alleged large scale excise duty evasion by the petitioner herein and the said Symphony Limited. As a culmination of such exercise, a detailed show cause notice came to be issued to the petitioner as well as to Symphony Limited. Commissioner of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to safeguard the interest of the Revenue, if the Appellate Authority or the Tribunal is of the opinion that deposit of duty demanded or penalty levied would cause undue hardship to such a person. 7. It can thus be seen that under Section 35F of the Central Excise Act, 1944, the appellant under the conditions specified therein ordinarily has to deposit the duty demanded or the penalty levied while filing an appeal before the Appellate Commissioner or the Tribunal. Under the first proviso to Section 35F, the Appellate Authority has the power to waive such pre-deposit on such condition as found fit to be imposed to safeguard the interest of Revenue, if the Appellate Authority is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such a person. Such expressions used in Section 35F of the Central Excise Act, 1944 came up for consideration before various Courts including Supreme Court. It is emphasized that the concept of undue hardship has two elements; of a prima facie case and financial hardship. In case of Union of India and another v. Adani Exports Limited and another, reported in (2007) 13 SCC 207 = 2007 (218) E.L.T. 164 (S.C.) = 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. Such principles were reiterated in case of Indu Nissan Oxo Chemicals Industries Limited v. Union of India and others, reported in (2007) 13 SCC 487. 8. In the present case, neither of the two companies have either pleaded or proved any ground of financial hardship before the Tribunal. Even before us, no such case was made out or even argued by either of the two counsel. The short question therefore, calls for consideration is, did the Tribunal commit an error in insisting on a small portion of the duty/penalty to be deposited by way of pre-deposit to enable the appellants to pursue their cases on merits. 9. We may recall that insofar as M/s. Polyset Plastics Private Limited is concerned, the Tribunal insisted on pre-deposit of only 10% of the duty demand. We may also recall that in addition to confirmation of duty demanded in the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on being the driving force behind the whole operation. It would be totally unfair and unjust to require only job workers to make pre-deposit of duty and allow Symphony to go scot free without any deposit in spite of the fact that maximum profit accrued to Symphony and not the job workers in this case. 12. The order of the Tribunal does not suffer from any material illegality. At this stage, it is not necessary to examine the contentions of the petitioners finally. A mere fact that the petitioners have prima facie case and some arguable points would not be the ground for insisting on waiver of entire pre-deposit. It was the discretion of the Tribunal in terms of the statutory provisions of Section 35F of the Central Excise Act, 1944 to waive either full or partial pre-deposit requirement. The Tribunal to safeguard the interest of Revenue having imposed certain conditions which cannot be stated to be so onerous that the petitioners cannot weigh them, granted waiver of the pre-deposit. 13. In case of Ketan V. Parekh v. Special Director, Directorate of Enforcement reported in 2012 (275) E.L.T. 3 (S.C.), the Apex Court observed as under : 26. Notwithstanding the above conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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