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2018 (11) TMI 1515 - HC - Central ExciseFull waiver of pre-deposit - undue hardship - whether the Tribunal, having accepted the plea of undue hardship had discretion or obligation under the law to grant full waiver? - Section 35F of CEA - Held that:- There are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient - For a hardship to be 'undue' it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. The other aspect relates to imposition of condition to safeguard the interest of Revenue. This is an aspect which the Tribunal has to bring into focus. It is for the Tribunal to impose such conditions as are deemed proper to safeguard the interests of the Revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of revenue. In view of the decision of Supreme Court in the case of Benara Valves [2006 (11) TMI 6 - SUPREME COURT OF INDIA], there is no hesitation to hold that even though the Tribunal is satisfied with regard to undue hardship, it has discretion to grant waiver either full or in part. What should be relevant consideration has been indicated in the aforesaid judgment of the Supreme Court. We are inclined to answer in the manner that even though in a given case, the Tribunal has held that a case of undue hardship is made out, it is within the jurisdiction of the Tribunal to grant full or partial waiver of pre-deposit. Liberty granted to the appellant to approach the Tribunal to satisfy on what relevant considerations it claims full waiver of pre-deposit - appeal disposed off.
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