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TMI Blog2014 (9) TMI 582X X X X Extracts X X X X X X X X Extracts X X X X ..... eight weeks from the date of communication of the order. 3. In a supplementary affidavit petitioner disclosed that pending the writ petition and because of non-deposit of the 25% of the duty demanded in terms of the said order, the Appellate Tribunal has recorded the dismissal of the appeals. 4. At the time of admitting the writ petition, the judgment of the Bombay High Court and the Supreme Court was placed by the respective counsel, which, prima facie, appears to have taken a divergent view. The matter was directed to be decided on a later date and interim order was passed by this Court. 5. The petitioner's main thrust in assailing the order passed by the CESTAT in this writ petition is that the Tribunal has not recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the duty demanded under Section 35F of the Central Excise Act, 1944. 9. The respondents, however, further relied upon a judgment of the Apex Court rendered in case of Indu Nissan Oxo Chemicals Ind. Ltd. v. Union of India & Ors. reported in 2008 (221) E.L.T. 7 (S.C.) to contend that while considering an application under Section 35F of the Central Excise Act, 1944, the Court must be guided by the principle that there must be an existence of a strong prima facie case and the undue hardship. 10. In the said report the Apex Court held that one of the essential ingredients of Section 35F of the Central Excise Act, 1944 is that the appellant must satisfy the Tribunal that imposition of, any pre-deposit would cause an undue hardship ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he observations made by the Apex Court in case of Sagarika Acoustronics Pvt. Ltd. (supra) as there is no finding recorded by the Tribunal relating to the net worth of the company. 12. It is no doubt true that the powers conferred under Section 35F of the Central Excise Act, 1944 so far as it relates to the dispensation of the pre-deposit of the duty demanded, is a discretionary one. The discretion should be exercised judicially and not capriciously and/or arbitrarily. While exercising the discretion the Court must record the reasons therefor, which should withstand on the settled legal parameters and does not lead to an inference which no reasonable man could arrive at. 13. The order impugned suggests that the Tribunal has recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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