9911796707
TMI Blog2007 (7) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944 (for short, 'the Act'), the petitioner has filed this petition under Article 226 of the Constitution of India. 2. The petitioner is engaged in the manufacture of threaded roof bolts from CTD bars, which are supplied to Singareni Collieries Company Limited, Kothagudem. By an order dated 29-3-2006 passed under Section 11A of the Act, Additional Commissioner of Central Excise, Hyderabad-III, Commissionerate (for short, 'the Additional Commissioner') created a demand of Rs.35,55,127/- against the petitioner and also imposed penalty of an equivalent amount by invoking Section 11AC and further penalty of Rs.10,00,000/- under Rule 25 of the Central Excise Rules, 2002 on the ground that it had manufactured and cleared goods du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24.8.07. On compliance, there shall be no recovery. Failure to comply will entail dismissal of the appeal." 4. Sri K. Vijay Kumar, learned counsel for the petitioner invited the Court's attention to order dated 7-8-2006 passed by the Tribunal in Appeal No.Excise/351/2006 - The Commissioner of Central Excise and Customs, Guntur v. The Andhra Pradesh Heavy Machinery and Engineering Limited to show that on an earlier occasion, the Tribunal had rejected the revenue's plea on the issue of levy of duty on "W Straps" and "Roof Bolts", and argued that the Tribunal is not at all justified in taking opposite view in the petitioner's case. Learned counsel emphasised that the petitioner and M/s. Andhra Pradesh Heavy Machinery and Engineer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prayer for waiver of pre-deposit, the Tribunal was bound to consider the tenability of it's claim and this is precisely what has been done in the present case. He submitted that the judgment of the Full Bench in Mahindra Mahindra Ltd. v. CCE (supra) is binding on the smaller Benches of the Tribunal and no illegibility was committed by the Tribunal by recording a prima facie finding that threaded roof bolts manufactured by the petitioner from CTD bars are excisable. Sri Rajashekar Reddy pointed out that in the case of M/s. Andhra Pradesh Heavy Machinery and Engineering Limited, the Commissioner (Appeals) dropped the demand created by the Assistant Commissioner on the ground that revenue had not produced any evidence to show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing." 7. An analysis of the above reproduced provision makes it clear that the person desirous of appealing against the demand created under the Act and the Rules or penalties levied by the competent authority has to deposit the entire amount of duty and/o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the requirement of pre-deposit would cause undue hardship to it. In the application filed by it under Section 35F of the Act, the petitioner raised a bald plea of acute financial hardship, but did not adduce any evidence to substantiate the same. Before this Court also, no evidence like the audited balance sheet and returns have been produced to prove that pre-deposit of the duty and penalty will cause undue hardship to the petitioner. As a matter of fact, the Tribunal has been more than considerate to the petitioner because it ordered waiver of the pre-deposit of the duty and penalty amounting to Rs.80,00,000/- subject to the condition of deposit of a sum of Rs.3,00,000/- only. Therefore, we are inclined to agree with the learned Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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