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TMI Blog2018 (11) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... ge the order made by the same Tribunal in Application No. E/STAY/1385/09-Mumbai. Both the sides are heard. 2. Both the proceedings were filed under section 35 (f) of Central Excise Act, 1944 by the petitioner for relief of dispensing with/for relief of waiver of condition of pre-deposit of duty and penalty amount for filing appeal in the Tribunal. In the first proceeding, the liability to pay duty was around Rs. 1.0032 Crore and C.E.S.T.A.T. had initially directed to deposit Rs. 25 % of this amount as pre-condition for entertaining the appeal. The appellant deposited the amount of Rs. six lakh out of Rs. 25 lakh and then challenged the said order of C.E.S.T.A.T. by filing Writ Petition No. 2622/1996 in this Court. This Court set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is challenged now in the second proceeding. 4. It is the case of petitioner from both the proceedings that on 5.11.2014 the petitioner company came to be declared as sick industry under Sick Industrial Companies (Special Provisions) Act, 1985 (in short 'S.I.C.A.') by the Board of Industries and Financial Reconstruction (in short 'B.I.F.R.') and the petitioner is preparing scheme for rehabilitation. It is contention of the petitioner company that this circumstance is not considered by C.E.S.T.A.T. even after directions given by this Court and so, the orders made by C.E.S.T.A.T. which are challenged in the two proceedings are liable to be set aside. 5. The two proceedings relate to different periods. The industry was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1944 which needs to be considered is mentioned below :- "35-F. Deposit, pending appeal of duty demanded or penalty levied. -Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeding, the order made by the Tribunal shows that Tribunal has touched the merits of the grounds of challenge to the assessment also to ascertain as to whether there is some arguable case in the appeal. The learned counsel for petitioner submitted that this approach is not permissible. This Court holds that such submission cannot be accepted. When the Court is expected to use the discretion, the Court is expected to consider to some extent the merits of the grounds also. In the present case, that was more necessary due to peculiar facts of the present matter. 10. The submissions made and the record show that the appellant company had imported material for manufacturing of goods in India and for that 100% exemption in duty was taken at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such circumstances, conduct of the party cannot be ignored by the Court or Tribunal while using discretionary power. Thus, apparently false record was prepared for evasion of duty. In spite of these circumstances, the concession is given by the Tribunal in condition of pre-deposit and the order shows that the order was made after 'keeping in view the financial condition and also the admitted liability'. Thus, other things like admitted liability in respect of duty are also considered by the Tribunal and financial condition is also considered. 11. The aforesaid circumstances show that false record was created, there was criminal wrong committed to avoid the liability to pay the duty to respondents. Even when sales had increased, by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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