TMI Blog2011 (10) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... REPRESENTED BY : S/Shri A.K. Mishra with B.M. Mangukiya, for the Petitioner. Shri Varun K. Patel, for the Respondent. [Judgment per : Sonia Gokani, J. (CAV)]. - Challenge in this petition is to the order of Customs Excise Service Tax Appellate Tribunal ( CESTAT in short) on dated 28th February 2011, directing the petitioner-firm to pre-deposit sum of Rs. 65.00 Lakh, being 50% of the duty amount within 12 weeks of the date of this order. 2. The facts which led to the filing of the present petitioner need to be reproduced in capsulized manner at this stage. 3. Petitioner is a partnership firm, which is engaged in the manufacturing and selling of flame proof and weather proof electrical equipments is located at Silvasa. On the basis of intelligence gathered by the Directorate General of Central Excise Tribunal ( DGCET for short) of alleged indulgence of the petitioner, in clandestine removal of finished goods under the sale invoices of two units, namely, M/s. Fenil Control Gears and M/s. EXEC, search was carried out at the factory premises of the petitioner as well as at the residential premises of the partners as also at the units allegedly used as conduits in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad passed in Application No. E/S/127 to 130 of 2010 in Appeal No. E/125 to 128 of 2010. (b) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant stay against any further implementation and operation of the impugned order dated 28-2-2011 passed by Customs Excise Service Tax Appellate Tribunal in Application No. E/S/127 to 130 of 2010 in Appeal No. E/125 to 128 of 2010. (c) Pass any other or further orders which this Hon ble Court may deem fit and proper in favour of the petitioner in the interest of justice. 7. Learned counsel Mr. Mishra appearing for the petitioner fervently argued before this Court that there was acute financial hardship suffered by the petitioner-firm. The Tribunal had simply disregarded that aspect while considering request. The second challenge is to the calculation made by the Commissioner, Central Excise in the order-in-original. It has been forcefully submitted that many of the vouchers are calculated more than once, which resulted in inflating the total demand of duty. He also raised the contentions that during the search conducted of v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from Counsel of the Revenue that Tribunal while considering the request of petitioner to forgo direction of pre-deposit pending the appeal has scrupulously considered these two requirements. As can be noted from the order of Tribunal, it in terms has held that neither the financial hardship was pleaded before it nor was any record placed before it to reflect upon poor financial condition of the petitioner. 12. However, what requires a mention at this stage is that while rejecting this plea of financial hardship what has also weighed with the Tribunal while passing its impugned order is that there is overwhelming evidence against the petitioner and there is no prima facie case existing. Thus, neither was the existence of prima facie case nor was the presence of twin requirements as laid down by the Apex Court these led it to deny the request of waiver of pre-deposit. 13. Before this Court, an attempt is made to point out from the record produced, tax audit and annual report of the year 2009-10, and from annexure Form 3CD that for the assessment year 2010-11, a gross profit of the current year of the petitioner-firm is Rs. 55,67,096/- and in the preceding year, it was Rs. 45,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igure direction of CESTAT of depositing Rs. 80.00 Lakhs would amount to directing deposit of only 20% of the total amount confirmed by the order of the Commissioner of Central Excise. The law on the aspect of financial hardship is made quite clear time and again. As discussed hereinbefore while dealing with the application of any litigation u/s. 35F of the Central Excise Act for dispensing with the condition of pre-deposit of duty, penalty, etc. consideration would be essentially undue hardship to the petitioner and safeguard of interest of the Revenue. As undue financial hardship, would be the matter known to the petitioner only, it would be required of the petitioner to bring forth requisite evidence for necessary consideration. As had been noted, there was no material presented before the Tribunal and nor the ones, which were produced were found to contain sufficiency of material so as to permit complete waiver of the pre-deposits. Before this Court, also as mentioned hereinbefore, papers of tax audit and tax reports as well as account of petitioner-firm do not in any manner are indicative of poor financial condition of the firm. At no point of time the company has experienced s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds which are not against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue : Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. 11. Two significant expressions used in the provisions are undue hardship to such person and safeguard the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in the case of Benara Valves Ltd. and Others v. Commissioner of Central Excise (supra). 19. Gujarat High Court in case of Special Prints Ltd. v. Union of India reported in 2009 (238) E.L.T. 738 (Guj.) went to the extent of saying that merely because the company becomes sick also is no reason for waiver of pre-deposit. 20. In light of the discussion held hereinabove, Tribunal has duly considered the requirements while dealing with such issues and it has taken good care of these principles and therefore, challenge of petitioner to the order of CESTAT fails and no indulgence is required in the order of pre-deposit of Rs. 65.00 Lakhs. 21. Corollary to this main prayer are the challenges of non supply of documents and wrong calculations on the part of authority. Learned counsel for the revenue strenuously pointed out to this Court that not only there is sufficiency of material on record which led the Order-in-Original to entertain and confirm the demand of duty, but, there is also further confirmation of large scale illegality in terms of records of various statements. 22. While adverting to rival contentions on these issues, huge record produced when examined by this Court f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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