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TMI Blog1994 (12) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... to remove the scrap/waste without payment of duty - such permission having been granted under Rule 57F(2) of the Central Excise Rules. The permission so granted was withdrawn on 10-1-1994 and an appeal preferred against that order for withdrawal was allowed by the Collector of Appeals on 21-4-1994. No fresh order has been passed by the Asst. Collector of Excise, thereafter. 3.The Excise Authorities issued series of show cause notices between 24-4-1989 and 10-6-1993 claiming a total sum of Rs. 95,12,779/- as payable by the petitioner in respect of the scrap/waste removed by it as waste without payment of duty and in accordance with the permission granted under 57F(2) of the Rules, the department basing its claim for such duty under the provision of Rule 57F(4). The petitioner disputed the liability. The Assistant Collector as also the Collector of Excise (Appeals) having confirmed the demand for payment of duty and rejected the objections, the petitioner has filed an appeal before the Central Customs, Excise, Gold (Control) Appellate Tribunal, Madras-17. In the appeal preferred, the petitioner also applied for waiver of pre-deposit by invoking Sec. 35F of the Act. The Tribunal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Counsel for the Central Government that the order made by the Tribunal is a discretionary order and the order does not call for any interference by this Court as the Tribunal has only directed to pre-deposit half of the amount which is just a little over 50% of the demand. 7.Learned counsel for the petitioner in support of his submission relied on several decisions of this Court as also the other High Courts and submitted that power under Article 226 of the Constitution has been consistently exercised by the High Court to interfere with the orders made under S. 35F in appropriate cases and that the Court, if circumstances so warranted, could modify the orders of the Tribunal. It was submitted that on the facts of this case, the order of the Tribunal in fact had caused undue hardship to the petitioner without any corresponding immediate benefit to the revenue, and that the order needs to be interfered with. 8.Learned counsel referred to a decision of this Court in the case of Sulochana Beverages P. Ltd. v. Asst. Collector of C. Ex., [1991 (53) E.L.T. 523 (Mad.)] wherein Kanakaraj J. emphasised that the order made under S. 35F though discretionary, being a judicial discretion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect deposit of Rs. 50,000/- as against the demand of Rs. 1.32 lacs. 12.In the case of Asha Rubber Industries , Bangalore v. Collector of Central Excise, Bangalore [1988 (34) E.L.T. 428 (Karnataka)], a learned single Judge of Karnataka High Court held that while considering the application for waiver of pre-deposit prima facie case as seen from the records was an important and relevant consideration. On the facts of that case, the Court considered to just direct the deposit of Rs. 7 lacs as against the demand for Rs. 13.24 lacs. 13.In the case of Bongaigaon Refinery Petrochem. Ltd. v. Collector of C.E. (A), Calcutta [1994 (69) E.L.T. 193 (Cal.)] a learned single Judge of the High Court at Calcutta emphasised that undue hardship caused to the petitioner is the major consideration and strong prima facie case is one of the factors to be taken into consideration in deciding the question of undue hardship to the petitioner. It was also emphasised that if the interest of the revenue is not in jeopardy the question of waiver of pre-deposit should be considered primarily with regard to the undue hardship caused to the petitioner by reason of not awarding pre-deposit. Section 35F of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not of relevance, but during the pendency of the proceedings prior to Final determination it is of relevance as the possibility of the industry having to shut down or being severely or adversely affected before a final determination of its liability which can possibly be in favour of the petitioner, should certainly be avoided. 17.The question of undue hardship has to be considered in relation to the facts of each case and no uniform formula can be applied as is evident from the cases referred to earlier in the course of this order. The amount directed to be paid by the appellants has been determined taking into consideration the facts of particular case and it has ranged from low of 20 per cent to a high of 100 per cent of the amount demanded. 18.It is now necessary to refer to the financial position of the petitioner. Its paid up capital is Rs. 32 lacs and as noticed by the Tribunal, its net profit for the year ended 31-3-1993 was Rs. 50 lacs. The amount of duty demanded is Rs. 95,12,779/- out of which, the Tribunal has directed pre-deposit of Rs. 50 lacs. The amount directed to be deposited is nearly one and half times of its paid-up capital and is almost equal to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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