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2006 (8) TMI 596 - CALCUTTA HIGH COURTMaintainability of the writ application - Waiver of pre-deposit - Deemed credit - undue hardship - Challenged the Order of the CEST Appellate Tribunal - Refusal to waive the requirement of pre-deposit of the disputed duty - HELD THAT:- In the instant case, the CESTAT has neither recorded the submissions made on behalf of the petitioner nor given its findings thereon. Furthermore, the impugned order does not disclose why the petitioner was required to deposit only ₹ 1,50,000/- as against demand of over ₹ 3,00,000/-. The Tribunal cannot exercise its power to waive pre-deposit of the duty disputed, even in part, in the absence of reasons. The power of dispensation cannot be exercised arbitrarily or whimsically or for the asking. Satisfaction that pre-deposit of the duty demanded could cause undue hardship is the condition precedent for exercise of the power to dispense with pre-deposit either fully or in part. Section 35F of the Central Excise Act, 1944 provides that, where in any appeal under Chapter VIA of the said Act, the order appealed against relates to any duty demanded in respect of goods which are not under the control of the Central Excise authorities or any penalty levied under the said Act, the person desirous to appealing against such order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. An order directing the pre-deposit or an order waiving pre-deposit may not involve any question of law, far less a substantial question of law and hence may not be appealable. In any case, such an order cannot be said to be an order in the appeal but is an order incidental to the hearing of the appeal. An order directing deposit of disputed duty or penalty either in full or in part is not ordinarily appealable. It cannot, therefore, be said that the petitioner has an adequate efficacious alternative remedy. The order impugned is, therefore, set aside. The Tribunal shall consider the question of waiver of pre-deposit afresh in accordance with law, after considering all relevant factors and in particular the submissions of the petitioners with regard to the prima facie case in appeal as also the financial capacity of the petitioner.
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