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2015 (8) TMI 1009 - MADRAS HIGH COURT

2015 (8) TMI 1009 - MADRAS HIGH COURT - TMI - Waiver of pre deposit - Financial hardship - Held that:- Except the demand raised in this matter, other facts in the present appeal and the one decided by this Court are one and the same and there is no dispute in this regard. The issues raised in this appeal are also no different from the one decided by this Court in [2015 (8) TMI 1010 - MADRAS HIGH COURT]. It is to be noted that the demand raised in this matter with regard to the cenvat credit on t .....

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ering pre-deposit raising the following substantial questions of law: "1. Whether in the facts and circumstances of the case, the Appellate Tribunal was correct in ignoring the decisions of this Hon'ble Court being the jurisdictional High Court, but following the decision of the Bombay High Court which is passed without considering the decision of the Hon'ble Supreme Court in the case of Jawahar Mills Limited? 2. Whether the Tribunal was right in ordering pre-deposit without conside .....

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a prima facie case for total waiver of pre-deposit? 5. Whether in the facts and circumstances of the case, the impugned order of the Tribunal is sustainable in law?" 2. Learned counsel appearing for the appellant as well as the learned Standing Counsel appearing for the respondent submit that in an identical circumstance, this Court, by order dated 11.06.2015, disposed of the Civil Miscellaneous Appeals in C.M.A.Nos.192 and 243 of 2015, modifying the pre-deposit ordered by the Tribunal. 3. .....

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al Excise, Pune reported in 2014 (35) STR 865 (Bom.) and that is justified. Insofar as the second issue relating to input services is concerned, it is stated that the said issue is arguable. We find that on this issue, there appears to be a decision of the Andhrapradesh High Court in the case of Commissioner of Central Excise, Visakhapatnam-II Vs. Sai Sahmita Storages (P) Ltd. reported in 2011 (270) E.L.T.33 (AP). In any event, on this arguable issue, the Tribunal, Ahmedabad Bench had earlier gr .....

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p stating that the accumulated loss of the appellant company is to the tune of ₹ 12,632.40 crores. We find much force in the plea of the appellant regarding undue hardship and financial difficulty in pursuing the appeal on payment of the pre-deposit as ordered by the Tribunal. The same, therefore, requires to be modified considering the prima facie case of the appellant as above. 13. At this juncture, it is apposite to refer to a decision of the Supreme Court in Benara Valves Ltd. v. CCE, .....

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osit 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 licence 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 citizen' .....

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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 Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion th .....

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oner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing." 11. Two significant expressions used in the provisions are 'undue hardship to such person' and 'safeguard the interests of the Revenue'. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in .....

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hich 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 something more than just hardship .....

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p and also to stipulate conditions as required to safeguard the interests of the Revenue." 14. For the foregoing reasons, we pass the following order: (i) On the questions of law raised, we are of the view that the Tribunal was not justified in ordering the pre-deposit in the manner stated in its order dated 20.11.2014; (ii) Consequently, the order of the Tribunal dated 20.11.2014 is modified to the effect that the appellant shall make a pre-deposit of ₹ 6,65,81,395/-, which is relata .....

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