9911796707
TMI Blog2006 (5) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... re 13 to the Writ Petition) on merits without insisting on the condition of any pre-deposit. (B) to issue a writ, order or direction in the nature of mandamus directing the Central Excise and Service Tax Appellate Tribunal i.e. the respondent no. 2 to allow the petitioner to dispense with the requirement of pre-deposit of Rs. 1,91,10,579/-. (C) to issue a writ, order or direction in the nature of certiorari quashing the Interim Stay Order Nos. S/347-50/2006 dated 10-4-2006; (Annexure 1 to the Writ Petition) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi i e. respondent no. 2. (D) to issue any other suitable writ, order or direction which this Hon'ble Court may deem fit in the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the petitioner, the Commissioner of Central Excise, Meerut had passed an order dated 30th November, 2005 wherein he has allowed certain deductions but has confirmed the demand of duty amounting to Rs. 2,06,10,579/- along with interest with an equivalent amount of penalty as also some amount of penalty was imposed on the Directors personally. The petitioner has preferred an appeal against the order dated 30th November, 2005 before the Tribunal. Along with the appeal the petitioner has also filed an application for waiving the requirement of pre-deposit of the amount of duty and the penalty as also for stay of realizing the entire amount. The Tribunal vide order dated 10th April, 2006 had rejected the application, in so far as the deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l only the limited question of exemption/set off was to be gone into, and in the appeal filed by the petitioner before the Apex Court no stay had been granted in their favour the Tribunal was perfectly justified in declining to waive the pre-deposit of duty. It is not necessary to call for the counter affidavit as the petition can be finally decided on the basis of the rival submissions. 5. Having given our anxious consideration to the various pleas raised by the learned counsel for the parties we find that the facts are not in dispute. Section 35F of the Act empowers the appellate Authority to waive/relax either in full or in part the requirement of pre-deposit of duty or other amount if it causes undue hardship. It is well settled that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d follows : "In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. In view of the above, we are of the considered opinion that as the Appellate Authority has not addressed to itself any of the issues involved in the appeal rather has gone to the issue of financial hardship which was unwarranted and uncalled for in the fact situation of this case. The order impugned cannot be sustained in the eyes of law and we have no option but to allow this petition and set aside the order impugned." 7. In the aforesaid case, this Court has held that the expressi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
