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TMI Blog2008 (7) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner. S/Shri R.J. Oza and Harin P. Raval, for the Respondent. [Judgment per : H.N. Devani, J. (Oral)].- This petition challenges the orders dated 14/26th September, 2007 and 18th December, 2007 passed by the Customs, Excise Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad (the Tribunal). The substantial relief claimed in the petition is as follows: "(A) Your Lordships be pleased to issue a writ of or in the nature of mandamus or a writ of or in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the Tribunal's orders dated 14 to 26-9-2007 and 18-12-2007 at ANNEXURE G and ANNEXURE L respectively and be further pleased to direct the Tribunal to hear the petitioner's appeal without insisting upon a pre-deposit." 2. The respondents had issued a show cause notice against the petitioner and Garden Silk alleging that they were related persons and that the petitioner had processed 10,24,92,878 L.Mt. of fabric for Garden Silk on job work basis during 1993-98, hence the petitioner should have paid duty in terms of the wholesale price at which the yarn and processed fabrics were sold by Garden Silk. The responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relationship and whether there was suppression are contentious and require to be gone into in detail at the time of final hearing. Therefore, we hold that applicants have not made out a strong prima facie case for total waiver of the dues as per the Order of the Commissioner. (6.1) Therefore, taking the entire facts and circumstances of the case including the submissions on the financial hardship faced by SPL, we direct M/s SPL to deposit a sum of Rs. 4 crores within 12 weeks from today and to report compliance on 18-12-2007 3. The petitioner, thereafter, moved an application seeking modification of the aforesaid order seeking full waiver of pre-deposit and stay against the deposit of entire amount of duty and penalty, mainly on the ground of financial hardship, stating that the petitioner's company had been registered as a sick unit with the Board for Industrial and Financial Reconstruction (BIFR) and a scheme under Section 17 of the Sick Industrial Companies (Special Provisions) Act, 1985 was under consideration. The Tribunal, in its impugned order dated 18th December, 2007 held as follows: "(2) The application for modification does not contain any fresh ground or any fre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before directing the petitioner to deposit only a fraction of the duty amount. It was submitted that under the provisions of Section 35F of the Central Excise Act, 1944 (the Act), discretionary powers are vested in the Tribunal. While examining the validity of the order of the Tribunal, all that has to be seen is as to whether while exercising discretion, the Tribunal has considered the factors laid down in Section 35F of the Act. It was submitted that the impugned orders passed by the Tribunal clearly show that all the factors envisaged under section 35F of the Act have been taken into consideration and that the Tribunal has applied its mind to all the submissions advanced on behalf of the petitioner and has thereafter exercised discretion. Hence, there is no warrant for any intervention by this Court. 6. As can be seen from the impugned order of the Tribunal, the Tribunal has after considering the submissions advanced on behalf of the parties, and after recording certain factual aspects, held that the petitioner has not made out a strong prima facie case for total waiver of the dues as per order of the Commissioner. After taking into consideration the entire facts and circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 656 which has been confirmed by the Supreme Court vide judgment and order dated 11 December, 2007 rendered in Civil Appeal No. 5795 of 2007 [2008 (221) E.L.T. 7 (S.C.)]. 9. In the case of Indu Nissan Oxo Chemicals (supra), this Court while dealing with a similar issue has considered the aforesaid decisions of the Supreme Court and held as follows: (6) In the case of Metal Box India Ltd. (supra) the Supreme Court was called upon to consider the question whether the Tribunal was justified in dismissing the Appeal on the ground that the amount which was required to be deposited u/s. 35F of the Central Excise Act, 1944, was not deposited within the period allowed by the Tribunal. While rejecting the contention raised on behalf of the assessee appellant before the Supreme Court it is laid down by the Apex Court as under: "(a) We are afraid, we cannot accept the contention of the learned Counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act, provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution, distress or the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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