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2013 (10) TMI 1098 - HC - Central ExciseWaiver of Pre-deposit – Appeal u/s35F – Held that:- It is for the appellant to establish undue hardship and the mere fact that the demand of duty and penalty may appear to be excessive, is irrelevant if the appellant has not been able to establish “undue hardship” - The expression “undue hardship” relates not only to the economic wellbeing of the appellant but also to the merits of the case, thus, requiring the CESTAT to also prima-facie appraise the merits and record an opinion for or against the appellant - An appellate forum cannot where the opinion recorded does not suffer from the aforesaid defects, impose its own perception of the merits of the case whatever be the nature of “undue hardship”. The appellant has not pleaded any financial hardship or financial distress in support of its plea of “undue hardship” and has mainly confined its pleadings to the merits of the demand raised by the revenue - A perusal of the orders passed by the Assessing Officer and the Appellate Authority do not enable us to record an emphatic finding in favour of the appellant that duty demanded and penalty levied are illegal or could not have been imposed. The question whether the duty was levied merely as the appellant and its partner surrendered income to the Income Tax Department, is a matter to be considered and decided after appraisal of the entire voluminous record - The appellant surrendered substantial unaccounted income to the Income Tax Authorities - The duty levied and penalty are based upon this disclosure, documents seized and inventories prepared by the Income Tax Department - affirming with the opinion recorded by the CESTAT, there is no reason to vary the order to grant any further relief to the appellant – Decided against Petitioner.
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