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TMI Blog1998 (9) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Range-III, Howrah West Division. 2.Admitted the present petitioners have filed two appeals along with two stay applications before the Commissioner of Central Excise (Appeals), Calcutta, against the two orders of adjudication both dated 8th May, 1997, the petitioners prayed for exemption of such pre-deposit, inter alia, on the ground that the company's financial position is not sound and also on the ground that he has a strong prima facie case. 3.By the first impugned order dated 28th November, 1997 the company has been directed to deposit a sum of Rs. 10 lakhs out of the disputed amount of Rs. 17,43,395/- and by the Second impugned order the petitioners' prayer for modification of the same has been rejected. 4.After con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Collector of Central Excise (Appeals), Calcutta, [1994 (69) E.L.T. 193 (Cal.)] wherein it has been held, inter alia, that the expression `undue hardship' would cover a case where the appellant has a strong prima facie case. 8.It appears that notwithstanding the attention of the Commissioner was drawn to such a decision, the prayer for modification was rejected on the ground that the appellant had failed to advance any argument in addition to what has already been made by them during the proceeding of the stay application nor any fresh fact has been brought. 9.It thus, appears to this Court that the same Commissioner is not even aware of the interpretation of the expression `undue hardship' in Section 35F of the Central Excise Act as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Lordships were made in paragraph 7 of the said judgment. Their Lordships came to such a finding keeping in mind the decision of the House of Lords in Julius v. Lord Bishop of Oxford reported in (1880) 5 Appeal Cases 214 which was approved by the Supreme Court in the case of L. Hirday Narain v. Income Tax Officer, Bareilly reported in AIR 1971 S.C. 33. 13.In the case of Tata Iron Steel Co. Ltd. v. Commissioner (Appeals), Central Excise, Calcutta reported in 1998 (98) E.L.T. 350 (Calcutta) Hon'ble Mr. Justice Vinod Kumar Gupta of this High Court has taken the same view. In coming to such a decision His Lordship has followed the decision of a Supreme Court in the case of Vijay Prakash D. Mehta and Jawahar D. Mehta v. Collector of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Appeals being totally unaware of such legal position. 17.In such view of the matter, the impugned order passed by the Commissioner of Appeals cannot be sustained and is liable to be set aside. 18.It, however, appears to this Court that the point which is sought to be urged by the writ petition as the appellant before the Commissioner of Appeals on merits prima facie is supported by judgments of the Supreme Court, namely in the case of Indian Oxygen Ltd. v. Collector of Central Excise reported in 1988 (36) E.L.T. 723 (S.C.). Therefore, it certainly can be said that the petitioner has got a strong prima facie case. 19.In such view of the matter of the writ application succeeds. The impugned orders are hereby set aside. The Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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