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TMI Blog2015 (5) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial question of law involved in the present appeal for consideration of this Court - Decided against assessee. - Central Excise Appeal No. 169 of 2014 - - - Dated:- 8-5-2015 - B. R. Gavai And A. S. Gadkari,JJ. For the Appellant : Mr. Vikram Nankani, Senior Counsel a/w Mr Jayesh Motwani i/b Economic Laws Practice For the Respondent : Mr. Y. R. Mishra a/w Mr. Nilesh Kalantri JUDGMENT (Per A. S. Gadkari, J.): 1. The appellant by the present appeal filed under Section 35G of the Central Excise Act, 1994 has questioned the correctness of the order dated 10th February 2014 passed by the learned Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Mumbai in Stay Application No.E/ST/92158/14 in Appeal No.E/85073/14, thereby directing the appellant to make a pre-deposit of 50% of the duty demand confirmed against the appellant within a period of 8 weeks and to report compliance by 10th April 2014. 2. A show cause notice was issued to the appellant and others dated 8th May 2012 by the Additional Director General, DGCEI, Zonal Unit, Mumbai after it was revealed in the investigation that the appellant received Cenvatable invoices from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was partly allowed by directing the appellant to make a predeposit of 50% of the duty demand confirmed against it within a period of eight weeks, as stated herein above. The appellant has impugned the said order dated 10th February 2014 passed by the CESTAT in the present appeal. 4. Heard Mr. Nankani, the learned Senior Counsel appearing for the appellant and Mr. Mishra, the learned Counsel appearing for the Revenue at length. We have also perused the record annexed to the present appeal. Mr. Nankani, the learned Senior Counsel submits that, the substantial question of law on which the present appeal has been filed are mentioned in para-5 of the appeal memo. The learned Senior Counsel further submits that the Commissioner of Central Excise before passing the order-in-original dated 30th September 2013 ought to have allowed the appellant to cross-examine Mr. Kevalchand G. Jain, the broker/supplier of the material of the appellant and the concerned officer/authority who during the course of investigation has found that the Octrai firm which cleared the consignments of the appellant at the check-naka at Mulund or other check-nakas in Mumbai is not in existence and in fact it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued in the name of concerned Jammu based supplier, after such cheques were encashed by them, the concerned Jammu based units deducted and retained 30% of the Cenvat amount and returned the balance cash to him and out of such cash received by him from the said Jammu based units, he deducted his own commission, which ranged from ₹ 2/- to ₹ 4/- per kg purportedly sold to the appellant under these invoices whereas the remaining cash was returned to the appellant. The Respondent No.1 has also recorded a finding that, the appellant availed the CENVAT credit without receiving the corresponding goods in their factory premises. It has been further observed that, the appellant in its defence could not provide any plausible clarification to the fact that neither the appellant nor any of the said manufacturers based at Jammu arranged the transport to deliver the said goods at the factory of the appellant at Mumbai. A finding has been recorded that there is no substance in the contention of the appellant that the production reflected in their balancesheet indicated the receipt of the said goods in their factory premises. That there is no substance in the contention of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, in view of the peculiar facts and circumstances of the present case. 8. At this stage, a useful reference can be made to the celebrated judgment of the Apex Court reported in in the case of K.L. Tripathi Vs. State Bank of India Ors [AIR 1984 SC 273], wherein the Apex Court has held that in quasi-judicial adjudication, neither cross-examination nor opportunity to lead evidence is an integral part of the adjudicating process while arriving at the conclusion by the said authorities. It has been further held by the Apex Court that, it is true that all the actions against a party which involve penal or adverse consequences must be in accordance with the principles of natural justice but whether any particular principle of natural justice would be applicable to a particular situation or the question whether there has been any infraction of the application of that principle has to be judged in the light of facts and circumstances of each particular case. That the basic requirement is that there must be fair play in action and the decision must be arrived at in a just and objective manner with regard to the relevance of the materials and reasons. The Apex Court has fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. It has been further held that the word undue would mean something more than just hardship. It means an excessive hardship or hardship greater than the circumstances warrant. In the present case, the learned Tribunal while considering the application of the appellant has held that, the appellant has not made out any case for grant of waiver of pre-deposit dues as confirmed against the appellant and has failed to bring on record any evidence in support of his contention that he is facing financial hardship as his factory is under closure. The learned Tribunal has further held that in the absence of any prima facie case, the interest of Revenue needs to be protected and therefore directed the appellant to make a pre-deposit of 50% of the duty demand confirmed against the appellant within a period of 8 weeks. 10. We are of the considered opinion that the learned CESTAT has recorded the finding correctly on the basis of the material available before it and has also taken into consideration the interest of the Revenue in that behalf. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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