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2011 (12) TMI 190 - HC - Central ExciseConsistency in rendering judgments or passing interim orders – pre-deposit directed on assessee vide order dated 07.09.2011 – on 8.9.2011, in an identical issue (Vasantham Enterprises), Tribunal dispensed with the condition of pre-deposit of duty and penalty and the stay petition was allowed un-conditionally – petitioner seeking recall of order dated 7.9.2011 - application rejected on ground that it was the discretion of the Tribunal to pass interim orders and it was not a fit case for exercise of power under Rule 41 of the CESTAT (Procedure), Rules, 1982 - Held that:- Discretion is not an arbitrary discretion. Tribunal should have invoked the power under Rule 41, once a petition producing also the order passed in Vasantham Enterprises, was brought to the notice of the Tribunal, in the interest of justice and for securing the ends of justice. While dealing with the application, twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. Undue hardship - held that:- As held by the Apex Court in Benara Valves Ltd case (2006 -TMI - 866 - SUPREME COURT OF INDIA), the undue hardship to the person is a relevant factor to be taken into consideration under Section 35 F of the Act. Therefore, order of Tribunal is set aside and Tribunal is directed to consider Annexure P-16, stay application, referring to all relevant factors, referred to above, and pass fresh orders. – Decided in favor of petitioner.
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