TMI Blog2000 (11) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Chapter 15 of the Schedule to the Central Excise Tariff Act, 1985 (in short, the Tariff Act). A show cause notice dated 30-11-1998 was issued requiring petitioner to show cause as to why differential Central Excise duty amounting to Rs. 72,27,073.20, not paid by it, should not be recovered under Section 11A of the Act by invoking the extended period of limitation as petitioner did not pay the duty on soap stocks manufactured by it and why penalty should not be imposed under Rule 173Q of the Central Excise Rules, 1944 (in short, the Rules) read with Section 11AC of the Act and as to why interest should not be charged under Section 11AB of the Act on the amount of demand. The basis for issuance of the notice was that during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for dispensing with pre-deposit was filed. By the impugned order, Tribunal has directed deposit of Rs. 35 lakhs. It has been indicated by the Tribunal in the order that on deposit of the said amount, balance duty and penalty would stand waived and stayed till disposal of the appeal. Deposit was directed to be made within six weeks from the date of communication of the order. 3. In support of the application, three submissions have been made. Firstly, it is submitted that the petitioner has been declared to be a sick company under the Sick Industrial Companies (Special Provision) Act, 1985 (in short, SICA). In that background Tribunal should not have directed any payment. Further the Tribunal has erroneously taken into account the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, they paid duty from December 1996 to February 1997, on 3920 MT of soap stock which was manufactured and captively used by them during this period. However, it revealed that they had not paid the duty on the correct total value of the 'soap stock'. The differential duty amount had been demanded from them. Having paid the duty on the soap stock voluntarily, the plea of the appellants prima facie that their product, soap stock is not marketable and not excisable, cannot be said to have been wrongly rejected by the Commissioner. Since the matter is pending in appeal and disputed facts are involved, it would not have been proper for Tribunal to record any positive finding either in favour of the assessee or the Revenue. 5. So far as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... precedent for entertaining the appeal. So far as the decision in Sangfroid's case (Supra) is concerned, factual position was different and the Apex Court directed to dispense with deposit in the peculiar circumstances of the case. It has not been laid down as a principle that when ever an appellant is a sick company, pre-deposit has to be automatically waived. It is to be noted that though Tribunal has described Amrit Pulp and paper Ltd. as a sister concern, it is in reality a subsidiary company. That being the position it was not wholly impermissible to take note of the financial status of the subsidiary company. Even if that aspect is excluded from consideration, the fact that sales for the period ending 31-3-2000 were in the neighbourho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofit or temporary loss of a commercial opportunity. Language used in Section 35F is not merely "hardship"; it is undue hardship. For a hardship to become "undue" it must be shown that the particular burden which is required to be observed or performed is out of proportion to the nature of the requirement itself and the benefit which the applicant would derive from compliance with it. Above being the position, we find nothing illegal in the order of the Tribunal directing deposit of Rs. 35 lakhs against the extra demand of Rs. 1.5 crores inclusive of penalty. We, therefore find no reason to interfere with the quantum fixed. However, time for deposit is extended till the end of December, 2000. Writ petition stands dismissed with aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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