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2006 (2) TMI 372

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..... demands have been requantified in terms of the larger bench judgment rendered in the assessee s own case. Therefore, they are required to pre-deposit the balance amount i.e. Rs. 79,33,636/- after deducting Rs. 6 lakhs already deposited by them within three months. Matter to come up for reporting compliance on 16-3-2006. It is made clear that on failure to pre-deposit the amount, appeal is liable to be dismissed. 2. They were to report compliance on 16-3-2006. Before the date of compliance the appellants have filed the above noted Miscellaneous Application under Section 35C(2) of CE Act asking for rectifying the mistakes on the grounds stated in the Miscellaneous Application. 3. The learned SDR submitted that an application for rectifica .....

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..... Order has noted that the Adjudicating Authority was directed only to re-quantify the amount, which he has been rightly done. It is the submission of the appellant that the issue in the appeal pertains to duty payable on Rubberised Nylon Tyre Cord Fabric (RNTCF) manufactured and used captively in the manufacture of Animal Driven Vehicle (ADV) tyres which were exempted from payment of duty. The item is not marketable and chargeable to duty. It is submitted that in the Final Order No. 13-16/05-NBA dated 6-1-2005 dealt with rubber coated tyre from fabric and not with the issue pertaining to Animal Driven Vehicle tyres. He also submits that the issue pertaining to marketability has not been dealt with. Therefore, the Stay Order is required to b .....

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..... ed to be allowed on merits, then they are required to be granted full waiver of pre-deposit of the amounts. He also submits that the Apex court in the case of Mehsana District Cooperative Milk Producers Union v. UOI reported in 2003 (154) E.L.T. 347 (S.C.) has held that no pre-deposit is required to be made in case the appellant establishes that the appeal is required to be allowed on facts of the case. He further submits that the Stay Order is required to be recalled and full waiver to be granted by allowing the Miscellaneous Application, in view of the fact that the Commissioner (A) in the case of M/s. Falcon Tyres Ltd. vide Order-in-Appeal No. 175/2005 dated 8-9-2005 has held that the product in question is not marketable. 7. The learn .....

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..... eful consideration, we notice that the Karnataka High Court in the case of McDowell Company s case (supra) has given a ruling that the Tribunal has no powers to recall the interim order. This view has been reiterated by the High Court in the case of CCE v. M/s. United Telecom Ltd., (supra). Although, we find that the Divisional Bench of the High Court in the case of ITC (supra) has taken a view that when the appellant establishes a prima facie case, then the hardship is also said to be in favour of the assessee and waiver is to be granted. But the Karnataka High Court in the case of McDowell Company (supra) has taken a contra view that the Tribunal has no powers to recall the order. In our humble opinion, the law is settled that when a .....

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..... been pleaded in the matter, therefore, in the light of the observations made by the High Court in the case of CCE v. M/s. United Telecom Limited, we have to reject the miscellaneous application seeking for modification of the stay order in question. Paras 27-30 of the stated judgment is reproduced herein below :- 27. I am of the clear view that a prima facie case in itself does not translate into a case of undue hardship. A prima facie may be the sine qua non for invoking the jurisdiction of the Tribunal to exercise the power for passing order of waiver of pre-deposit and not the end in itself to automatically grant a total waiver. It is only when the Tribunal is satisfied and forms an opinion that the requirement of pre-deposit will co .....

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..... ike the pre-deposit provision under Section 129E can only be linked to the financial hardship that the assessee faces if the assessee has to comply with the pre-deposit requirement and cannot be anything else. Unless an assessee pleads the financial hardship for the compliance of pre-deposit and the assessee in fact is unable to pay the pre-deposit amount in reality also, there is no undue hardship as contemplated in the proviso to Section 129E. In the present case it is not even the case of the appellant before the Tribunal that it faces any financial hardship or has any difficulty in this regard. Even in the absence of any plea from the appellant before the Tribunal to this effect, the Tribunal ventures upon to grant total waiver of pre-d .....

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