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TMI Blog2013 (1) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... chargeable to Central Excise duty under sub-heading 4804.90 of the Central Excise Tariff. Shri Pankaj Gupta and Shri Vikas Jain are the Directors of the appellant-company. The appellant-company on 16-7-2003 filed an application in the office of Assistant Commissioner, Central Excise, Haldwani for availing the area based exemption under Notification No. 49/2003-C.E., dated 10-6-2003 on the ground that they had undertaken substantial expansion of their installed capacity by not less than 25% on or after 7-1-2003 and that they have completed the expansion work. Pending the acceptance of their claim for exemption, they opted for provisional assessment under Rule 7 of the Central Excise Rules, 2002 which was allowed. The Deputy Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; Commissioner's order dated 15-6-2004 was allowed vide order-in-appeal dated 10-8-2004 of C.C.E. (Appeals) on the ground that while the major work of expansion was undertaken prior to 7-1-2003, the expansion work was complete only after 7-1-2003 i.e. on 14-1-2003 and, therefore, the appellant would be eligible for the exemption. 1.3 Against the above order dated 10-8-2004 of C.C.E. (Appeals), the Department filed an appeal before the Tribunal. In the meanwhile, during the period from June 2004 to March 2010 the appellant made clearances without payment of duty by availing full duty exemption under Notification No. 49/2003-C.E. The department issued from time to time, a total of eight show cause notices for demand of short paid dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain and Shri Amit Jain, Advocate, the learned Counsel for Shri Pankaj Gupta, pleaded that while the issue involved in this case, stands decided against the appellant by the order dated 18-8-2009 of the Tribunal which has been upheld by Hon'ble Uttranchal High Court, the appellant filed a special leave petition (SLP) against the High Court's order before Hon'ble Supreme Court and the same has been admitted by Hon'ble Court, that in terms of Apex Court's judgment in case of Union of India v. West Coast Paper Mills Ltd. reported in 2004 (164) E.L.T. 375 (S.C.), once a special leave is granted, and appeal is admitted, correctness or otherwise of the judgment of the Tribunal becomes wide open, that on account of admission of appellant's SLP by H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 9-4-2010 of Hon'ble Uttranchal High Court, that in view of this, the judgment dated 9-4-2010 of the High Court is binding on the Tribunal, that Apex Court's judgment in case of Union of India v. West Coast Paper Mills (supra), cited by the appellant is not applicable to the facts of this case, and that since the appellant do not have prima facie case in their favour, this is not a case for waiver from the requirement of pre-deposit. 5. We have carefully considered the submissions from both the sides and perused the records. 6. So far as the merits of the case are concerned, there is no dispute that - (a) while an existing unit in Uttranchal would be eligible for exemption under Notification No. 49/2003-C.E. only if i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant have cited the judgment of Hon'ble Supreme Court in case of Union of India v. West Coast Paper Mills (supra) in para 38 of which the Hon'ble Court has held as under : - "38. In the aforementioned cases, this Court failed to take into consideration that once an appeal is filed before this Court and the same is entertained, the judgment of the High Court or the Tribunal is in jeopardy. The subject matter of the list unless determined by the last Court, cannot be said to have attained finality. Grant of stay of operation of the judgment may not be of much relevance once this Court grants special leave and decides to hear the matter on merit." 7.1 On the basis of the above judgment of the Apex Court, it is pleaded that since ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be satisfied. Thus, when for maintainability of an appeal filed under Section 35B, the condition of pre-deposit under Section 35F has to be satisfied, the provision of Section 35F would have to be complied with. In term of the provision of Section 35F, the requirement of pre-deposit can be waived only on the ground of "undue hardship", for which, as mentioned above, the appellant have to establish that they have prima facie case in their favour, and there is likelihood of the final decision being in their favour. An appellant can be said to have established prima facie case if he establishes that prima facie, on the basis of evidence on record or on the basis of the judgments of the Tribunal, High Courts or Apex Court on the issues involved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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