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2015 (3) TMI 1042 - UTTARAKHAND HIGH COURT

2015 (3) TMI 1042 - UTTARAKHAND HIGH COURT - TMI - Waiver of pre deposit - case of the appellant was that the appellant has not received fair consideration before the Tribunal, inasmuch as, its Application for exemption from pre-deposit has not been considered on merits - Held that:- In the impugned order, there is no reference to the case of the appellant as such or its contentions. We further notice that there is no reference to the order of the Tribunal, which was passed in the year 1999, whi .....

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l) This is an Appeal, which has been filed under Section 35 G of the Central Excise Act, 1994 (hereinafter referred to as the Act). Appellant is aggrieved by Annexure-3 order. By Annexure-3 order, the Customs, Excise And Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal) has disposed of the Application maintained under Section 35 F of the Act by directing the appellant to deposit fifty per cent of the ₹ 3.07 crores, i.e. ₹ 1.58 crore within a period of eight wee .....

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ch are resins manufactured by the appellant and used captively in the manufacture of their final products i.e. laminates, etc. Inasmuch as the appellant is enjoying the area based exemption notification, they were not paying any duty on their final products. 2. In such a scenario, Revenue raised demands in respect of the above resins, by invoking the longer period of limitation, which stands confirmed vide the impugned orders of the Commissioner. 3. After hearing both the sides, we find that an .....

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imilarly situate, we direct the appellants to deposit 50% of the amount of ₹ 3.07 crores i.e. ₹ 1.58 crore within a period of 8 weeks from today and report compliance on 4.2.2015. Subject to deposit of the above amount, the pre-deposit of the balance amount of duty and entire amount of penalty shall stand waived and its recovery stayed during the pendency of appeal. 3. We have heard the learned counsel for the appellant and the learned Standing Counsel for the Central Excise / respon .....

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by saying that they are related to other manufacturers. In short, the complaint is that the actual contentions raised by the appellant were not as such considered. This is in response to the contention of the learned counsel for the respondent, who contended that there is no substantial question of law made out and what is really involved is only the exercise of discretion by the Tribunal, and it has acted within its jurisdiction and no interference is called for. 6. According to the learned cou .....

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in, Melamine resin, Urea Formaldehyde, Phenolic Acid etc. coming into existence at the intermediate stage are chargeable to excise duty. 2. Shri Ramachandran, Corporate Taxation Advisor, submitted that the department is seeking to levy the duty at the initial stage when two products namely, Phenol and Formaldehyde or Urea and Formaldehyde are mixed. The mixture is in unstable condition. He further submitted that the issue has been settled by the Supreme Court in the case of Moti Laminates, repor .....

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nal), ii) Metro Wood & Engg. Works Vs. CCE, Ahmedabad 1996 (65) ECR 79 (Tribunal), iii) CCE, Ahmedabad Vs. Metrowood & Engg. Works Pvt. Ltd.: 1998 (98) ELT 383 (Tribunal) 3. We heard Shri H.K. Jain, learned SDR. 4. As the issue involved in the appeal has been settled by the Supreme Court in the case of Moti Laminates, following the ratio of that decision, we set aside the impugned order and allow the appeal. 7. According to him, the Commissioner has not properly considered the case of th .....

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itself, arrived at the finding of fact. No doubt, it is a matter, which the Tribunal will investigate in the Appeal, but pending such investigation, the Tribunal has only directed, in exercise of its discretion, deposit of 50 per cent of the amount and, that too, only after reckoning the amount, which is within time and also excluding the penalty portion. Hence, no interference is called for. 9. Learned counsel for the appellant also drew our attention to the decision of the Hon ble Apex Court r .....

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and. Petitions for stay should not be disposed of in a routine manner unmindful of the consequences 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 fair .....

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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 .....

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