TMI Blog2014 (11) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... AT has addressed on the issue of limitation though the same was raised before the adjudicating authority and also raised before the CESTAT. Furthermore, the petitioner have produced documents and materials relating to the loss suffered in the business and raises the plea of financial hardship which does not appear to have been taken care of in the impugned order. issues raised before this Court which was also raised before the CESTAT has not been considered in the impugned order and, therefore, is required to be set aside. - matter remanded back to tribunal - Decided in favour of assessee. - W.P. No. 1170 of 2013 - - - Dated:- 31-10-2014 - JUSTICE HARISH TANDON, J. Mr. J.P. Khaitan, Adv. Mr. Arijit Chakraborty. .. for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ap and, therefore, was cleared/removed as such. According to the excise authorities, the petitioner removed the waste and scrap for manufacturing final product at a lower price and have wrongly availed the Cenvat credit and demanded the same to be reversed. In reply to a show cause notice, the petitioner says that for manufacturing MS ingots and billets, MS scrap, CI scrap, sponge iron and pig iron are used as inputs which resulted into the removal of several foreign particles which are the waste and scrap and, therefore, sold into the open market at a rate of ₹ 2000/- per metric tone. The petitioner further says that the excise duty leviable on the same waste and scrap have been duly paid and, thus, the question of removal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered that a strong prima facie case has been made out and any direction for deposit of the duty demanded would cause undue hardship. It is lastly submitted that the CESTAT has not adverted to the issues of the limitation which was very much addressed by the petitioner and, therefore, the order impugned is not sustainable. The learned Advocate for the respondent submits that the CESTAT has exercised the discretion in directing the petitioner to deposit ₹ 50 lakhs of the duty demanded after assigning the reasons. It is further submitted that once the tribunal has exercised such discretion with honest, bonafide and in objective manner, the writ court should not interfere with such order. It is further submitted that there is a distinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r order relating to duty demanded. First proviso to the said section bestowed power on the appellate tribunal to dispense with such deposit, subject, however, to such condition which may be deemed fit to impose so as to safeguard the interest of revenue. Such dispensation can be made, if the appellate tribunal is of the view that deposit of duty demanded, would cause undue hardship. In case of Vijay Prakash D. Mehta v- Collector of Customs reported in 1989 (39) ELT 178 (SC), the Apex Court held that though first proviso under Section 35F empowers the Appellate Authority to dispense with the obligation to deposit but such discretion should be exercised on the relevant material honestly, bonafide and objectively. Similar view is expressed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 15. As noted above there are two important expressions in Section 129 E. One is undue 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 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 very mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh the same was raised before the adjudicating authority and also raised before the CESTAT. Furthermore, the petitioner have produced documents and materials relating to the loss suffered in the business and raises the plea of financial hardship which does not appear to have been taken care of in the impugned order. The reliance can be safely made to a judgment of the Supreme Court rendered in case of Commissioner of Central Excise, Indore v- C.T. Cotton Yarn Ltd; reported in 2010 (259) ELT 3 (SC) wherein it is held that the tribunal is required not only to give decision on the merit but should also record the reasons on the plea of limitation, if raised. It would relevant to quote the Paragraph 6 of the said judgment which runs thus: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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