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2013 (6) TMI 652 - ANDHRA PRADESH HIGH COURTAppeal against the stay order of CESTAT directing the appellant to made predeposit of Rs. 60 Lakhs - Held that:- Having carefully gone through the judgment of the Division Bench in M.I.Metal Sections Pvt. Ltd's case [1994 (10) TMI 67 - HIGH COURT OF KARNATAKA AT BANGALORE], we respectfully disagree with the opinion expressed by the Division Bench of the Kerala High Court. According to us, the condition prescribed under Section 35F of the Act that the person desirous of appealing against the order shall deposit the duty demanded or the penalty levied is mandatory. However, the power to dispense with such condition has been conferred on the CESTAT only where it is satisfied that the deposit of the duty demanded or penalty levied would cause undue hardship to such person. Such discretion has already been exercised by the CESTAT and an order came to be passed on 13.04.2011. The said order has also been upheld by this Court in W.P.Nos.14260 of 2011 and 14329 of 2011. Therefore, according to us, it is not open to the appellants to reagitate the issue. It is also relevant to note that when the appeals were taken up by the CESTAT on 04.02.2013, the appellants did not say that they were under financial crisis nor there was any plea about the hardship being faced by them to comply with the condition under Section 35F of the Act. - Decided against the assessee.
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