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TMI Blog2012 (7) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2010 passed by the Commissioner, Customs & Central Excise, Raipur. (2) Facts of the case, in nutshell, which are relevant for disposal of the present writ petition are that before the said appellate authority the petitioner moved an application for waiver of pre-deposit in accordance with Section 35 F of the Central Excise Act, 1944 on the ground that the demand notice of Rs.135 Lakhs together with equal amount of penalty is based on pure interpretation of legal provisions and there is no allegation that the petitioner has either evaded the tax or has concealed anything which would attract the amount of penalty as well as the original levy, he is entitled to waiver of pre-deposit. (3) Learned counsel for the petitioner wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressions in Section 35-F. One is under 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. It was noted by this Court in S.Vasudeva Vs. State of Karnataka AIR 1994 SC 923 that under Indian conditions expression "undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be "undue" it must be shown that the particular burden to observe or perform the requirement is out of proportio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner may suffer and the interest of revenue, however, in the present case the Tribunal has not considered and has not recorded any finding with regard to the issue as to whether the petitioner would suffer undue hardship if he is made liable to deposit amount of Rs.100 Lakhs.
(7) Taking guidance from what has been settled by the Hon'ble Supreme Court this Court is of the considered opinion that the impugned order deserves to be set-aside and the mater deserves to be remitted back to the appellate Tribunal for deciding the application preferred by the petitioner seeking waiver of pre-deposit in accordance with law as settled by the Hon'ble Supreme Court in the matter of Benara Valves Ltd. (supra). X X X X Extracts X X X X X X X X Extracts X X X X
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