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TMI Blog2014 (11) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject matter of challenge in this writ petition. By the impugned order, the CESTAT directed the petitioner to deposit Rs. 50 lakhs out of the confirmed amount of duty excluding the amount of Rs. 15 lakhs already deposited in course of investigation. The petitioner is a manufacturer of MS ingots and runners and risers which are the excisable goods. A search was conducted at the registered factory premises as well as head office of the petitioner and several documents and records were seized. On scrutiny of those seize documents, the authority found that the petitioners have wrongfully enjoyed the Cenvat credit. A show cause notice cum demand was issued to the petitioner primarily on the ground of clearance of MS 'waste and scrap' at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise, Haldia Commissionerate confirmed the demand of Rs. 2,38,60,024/- only and imposed the penalty of the like amount apart from a further penalty of Rs. 25 lakhs under Rule 26 of the Central Excise Rules' 2002 and a penalty of Rs. 50,000/- and Rs. 10,000/- personally on the Chief Executive (Accounts) and Manager (Accounts) of the petitioner no.1. The petitioner assailed the said order before the CESTAT and also filed an application seeking waiver of the pre-deposit of the duty confirmed which is disposed of by the impugned order. The learned Advocate for the petitioner submits that the CESTAT has not considered the financial position, which is one of the ingredients having brought within the purview of undue hardship. He further submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a shockingly low price in order to avail the Cenvat credit wrongfully. It is undisputed that the 'waste and scrap' was shown in the raw material account and have been cleared @ Rs. 2,000/- per metric ton. There is a rival contentions of the respective parties that those 'waste and scrap' were generated from the manufacturing process. According to the department, once the 'waste and scrap' was shown in the raw material account, it is to be treated as such and if the same is sold in such form, it would be deemed that the raw material has been cleared without utilizing and using in a manufacturing process and, therefore, the Cenvat credit cannot be availed. The respective counsels have placed several judgments in support of the contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 position has been highlighted in M/s Benara Valves Ltd and Ors. v. Commissioner of Central Excise and Anr. -(2006 (12) SCALE 303). Though the said case related to dispute under the Central Excise Act, 1944 ( in short the 'Excise Act') the parameters are the same." There is no quarrel to the aforesaid proposition of law as laid down in the above reports. While dealing with an application for dispensation of the pre-deposit condition, the Appellate Authority should not only record on the prima facie merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Since no finding whatsoever was recorded by the Tribunal on the aforesaid issue, we are of the opinion that the impugned judgment and order passed by the Tribunal is required to be set aside and sent back to the Tribunal, for the purposes of giving its decision on all the issues like limitation raised and is mentioned paragraph 11 of the impugned judgment and order and also to give decision on merits after noticing and appreciating the aforesaid decisions which have been relied upon before us. The Tribunal may hear the parties and render its decision by giving reasons for it as expeditiously as possible." This Court, therefore, finds that the issues raised before this Court which was also raised before the CESTAT has not been considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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