9911796707
TMI Blog2014 (1) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... should not be recovered by invoking proviso to Section 11A(1) (now Section 11A(4))of the Central Excise Act, 1944. That the petitioner was also directed to show cause as to why, appropriate interest should not be recovered and as to why penalty should not be imposed under Section 11AC of the Central Excise Act as well as Rule 25 of the Central Excise Rules, 2002. That the adjudicating authority after giving opportunity to the petitioner and others by order dated 15.3.2013 has confirmed the duty liability of Rs. 1,19,31,668/- on the noticee No.1 i.e. petitioner No.1 under the provisions of Section 11A(1) (now Section 11A(4) of the Act and has also imposed penalty of like amount i.e. Rs. 1,19,31,668/- on the petitioner under Section 11AC of the Act. The adjudicating authority has also passed an order of confiscation of 13 Air Compressors valued at Rs. 1,04,009/-. By OIO the adjudicating authority has also imposed the penalty of Rs.10000/- on petitioner company and imposed penalty of Rs 10 lakhs each on the Directors. 2.1 Feeling aggrieved and dissatisfied with the OIO dated 15.3.2013, the petitioner preferred appeal before the Customs, Excise Service Tax Appellate Tribunal (CESTAT) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that no prima facie case is made out for complete waiver. It is submitted that by holding so the Tribunal has only considered para 31 to 36 of the OIO. 4. Heard Shri Paresh Sheth, learned advocate for the petitioner-original appellant at length. At the outset, it is required to be noted that the adjudicating authority has confirmed the duty liability of Rs. 1,19,31,668/- against the petitioner-original appellant and has also imposed the penalty of like amount i.e. Rs. 1,19,31,668/- and petitioner is also directed to pay interest under Section 11 AC of the Act on the aforesaid amount. Against the aforesaid liability, the Tribunal has directed the petitioner-original appellant to deposit an amount of Rs. 20 lacs only as pre-deposit under Section 35 F of the Act. 5. While passing the impugned order, it appears that the learned Tribunal has as such considered the order in original to satisfy itself with respect to prima facie case of complete waiver or not. The Tribunal has also observed that detailed arguments made on behalf of the appellant are required to be gone into detail, which can be done only at the time of final hearing of the case. Considering the aforesaid facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be disposed of in a routine matter unmindful of the consequence flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Silliguri Municipality and Dunlop India Ltd. cases (supra) without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows :- 35F. Deposit, pending appeal of duty demanded or penalty levied- Where in any appeal under the Chapter, the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 17. The Apex Court in the case of Mehsana District Cooperative Milk U.P. Ltd. v. Union of Indina 2003 (154) E.L.T 347(S.C) also considered this issue in the following manner:- "2. The issue here relates to the order passed by the Commissioner (Appeal), Central Excise and Customs under Section 35F of the Central Excise Act, 1944. By the impugned order, the appellants have been directed to deposit an amount of Rs.30 lakh by way of pre-deposit. The reasoning given in support of such order is wholly unsatisfactory. The Appellate Authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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