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TMI Blog2005 (3) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents. RULE. Mr. Malkan waives service of Rule. 3.The petitioner-Company is engaged in business of engineering and construction. On 18th April, 2001, M/s. Larsen Toubro Ltd. awarded sub-contract to the petitioner-Company for carrying out work of National Highway No. 5 between 61 KMs to 98 KMs. It appears that, on 19th December, 2000, M/s. Larsen Toubro Ltd. were awarded the main contract of National Highways Authority of India (NHAI) and in pursuance thereto, on 1st March, 2001, a notification came to be issued by the Central Government bearing No. 17/2001 granting exemption to various products whereunder at Srl. No. 217 of the Table, exempted goods specified in List 11 required for road construction were exempted from payment of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner as sub-contractor of M/s. Larsen Toubro Ltd. as per provisions of the said agreement. That despite such addendum to the agreement and subsequent clarification dated 30th November, 2001, the adjudicating authority, while passing the order in original on 15th January, 2002, has chosen to ignore the said subsequent communication and adopted the stand that when the main contract was awarded by NHAI to M/s. Larsen Toubro Ltd. and also at the time of presentation of Bill of Entry, the conditions specified at Sr. No. 38 of the notification are not complied with. In these circumstances, it was urged that the order of respondent No. 2 authority, directing the petitioner to pay 50% of the duty demanded in cash and balance 50% to be secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the petitioner and the submissions made on behalf of the petitioner; paragraph No. 3 states that the appellate authority has gone through the records of the case and thereafter reproduces Section 129E of the Act; and lastly, paragraph No. 4 reads as under : "I find that the duty amount confirmed by the lower authority in the impugned Order-in-Original has not been deposited by the applicants. No case has been made out by the applicants regarding financial hardship. Accordingly, the applicants are directed to deposit 50% of the demanded duty and Bank Guarantee for the balance amount before the proper officer, failing which the lower authority will be at liberty to take necessary action permissible as per law for recovery of du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the appeal can be heard, deposit of the duty, interest or penalty is a pre-condition for the appeal to be heard on merits, but, under the proviso the appellate authority is granted a discretion, which is required to be exercised in the context of factual matrix of a particular case. 9.Dealing with a provision under the Central Excise Act, 1944, namely, Section 35F of the said Act, the Apex Court in the case of Mehsana District Co-op. Milk Pvt. Ltd. v. Union of India, 2003 (154) E.L.T. 347 (S.C.) laid down that the appellate authority is required to address his mind to the prima facie merits of the appellant's case and after being satisfied of the same, determine the quantum of deposit taking into consideration the financial hardship an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 (Annexure "A") is required to be quashed and set aside. 11.The decision of this Court, on which reliance has been placed on behalf of respondents, does not state anything beyond what is stated in this judgment, but on facts, it has been found that the Tribunal has rightly exercised its jurisdiction and passed a conditional order on merits before it. Therefore, the said decision does not carry the case of the Revenue any further in the circumstances of the present case. 12.In the result, the petition is allowed. The impugned order (Annexure "A") dated 12th August 2004 made by the respondent No. 2 is quashed and set aside. The petitioner shall be heard on its application for stay of recovery of demand and the appellate authority sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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