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TMI Blog2014 (3) TMI 417X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Commissioner has refused to grant full waiver of pre-deposit contrary to what has been prayed for by the petitioner. He has found on fact that the petitioner has not been able to make out a reasonably strong case on merit. In view of this finding, we have to examine whether such finding can be reached by the learned Commissioner or not ? Learned counsel for the petitioner argues that such finding could not be reached as reasons have not been spelt out. According to us, the reasons have been given. But, there has not been any elucidation. We feel that had there been elucidation, it would have been case of pre-judging. The law provides for waiver of pre-deposit where there has been undue hardship and undue hardship is ordinarily perceiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen's 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 Siliguri Municipality and Dunlop India cases 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 this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (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 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to suffer with a condition of pre-deposit in a case of this nature till the disposal of appeal and full waiver would be justified. (ii) When it is found that the impugned order was passed though having jurisdiction but on apparent non-application of appropriate law or mis- application of law, patently contrary to Supreme Court decision or High Court decision on identical issue which has reached finality, it will also be a strongest case where full waiver be justified. In cases where it is found that there has been an arguable case, apparently, without inviting the counter arguments, the matter cannot be decided, the litigant should be subjected to make pre-deposit to some extent as the learned Commissioner, thinks fit. But, where it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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