TMI Blog2014 (2) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has not produced any further material to establish undue hardship - Decided against assessee. - W.A. No. 30 of 2010 - - - Dated:- 31-7-2013 - R. Banumathi and T.S. Sivagnanam, JJ. Shri S. Murugappan, for the Appellant. Shri P. Mahadevan, CGSC, for the Respondent. JUDGMENT Being aggrieved by the Order dated 12-11-2009 made in W.P. No. 23063 of 2009 [2012 (275) E.L.T. 185 (Mad.)] directing the appellant to deposit Rs. 75 lakhs and on such deposit the Tribunal to take up the appeal, the appellant has preferred this appeal. 2. A demand of Rs. 2,73,31,320/- was raised towards anti-dumping duty against import of Compact Fluorescent Lamps (CFL) with chokes imported through various Bills of Entry from the exporting country/China. As per Notification No. 128/2001, dated 21-12-2001 issued and effective up to and inclusive of 20th day of June, 2002, provisional anti-dumping duty was imposed on CFL with or without choke originating in or exported from China or from Hong Kong to India. The appellants provisionally cleared the goods pending determination of anti-dumping duty. When final Notification No. 138 of 2002, dated 10-12-2002 was issued making the levy effective fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 12-11-2009, the learned single judge held that the order passed by the Tribunal cannot be faulted. However, considering the financial difficulties of the appellant, the learned single judge directed the appellant to deposit Rs. 75 lakhs within a period of eight weeks and further directed the Tribunal that on such deposit to take up the appeal and dispose the same in accordance with law. 6. Being aggrieved by the direction to deposit Rs. 75 lakhs, the appellant has preferred this writ appeal. The learned counsel for the appellant contended that provisional Notification No. 128/2001, dated 21-12-2001 was effective up to 20-6-2002 in respect of the goods imported from the country of export mentioned in Notification No. 128 of 2001 and the said Notification No. 128 of 2001 has ceased to operate, from the above date (20-6-2002) and the goods imparted by the appellants after that date are not liable to anti-dumping duty. Further contention of the appellant is that Notification No. 138 of 2002, dated 10-12-2002 cannot have retrospective operation. It was urged that Section 9A, sub-section (3) of the Customs Tariff Act, 1975 does not permit to revive a notification i.e., Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether Notification No. 138 of 2002, dated 10-12-2002 could have retrospective operation? (ii) whether sub-section (3) of Section 9A of the Customs Tariff Act does not permit to revive notification i.e., Notification No. 128 of 2001, dated 21-12-2001 to survive in terms of Notification No. 138 of 2002? (iii) After Notification No. 128 of 2001 ceased to operate after 20-6-2002 whether the subject matter was left for investigation; and (iv) when the appellant imported goods whether the appellants had knowledge about the progress of the investigation are to be determined only by the CESTAT. The liability of the appellant to pay anti-dumping duty has to be decided only in the main appeal before the Tribunal. The mere fact that the issues that arise for consideration of the appellate authority are arguable is not in itself sufficient for a complete waiver of pre-deposit. What is to be seen is whether there is any hardship if pre-deposit is not waived for hearing of the appeal on merits. The answer is that question would largely depend upon the facts and circumstances of each case. 10. Section 35F of the Central Excise Act reads as under : 35F. Deposit, pending appeal, of duty deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due means excessive hardship , the Hon ble Supreme Court held as under : 13. For a hardship to be undue , it must be shown that the particular burden to have to observe or perform the requirement 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. . 16. The above position was highlighted in Benara Valves Ltd. and Others v. Commissioner of Central Excise and Another [2006 (13) SCC 347]. The decision was rendered in relation to Section 35F of the Central Excise Act, 1944 where also identical stipulations exist. Same view was expressed by the Apex Court in another decision relied on by the Revenue reported in Benara Valves Ltd. and Others v. Commissioner of Central Excise and Another [2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.)]. 14. By following the above decision of the Apex Court, a Division Bench of our High Court in the decision reported in 2011 (270) E.L.T. 519 (Mad.) (Fayshaw Apparels v. ATFE, New Delhi) wherein one of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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