TMI Blog2018 (11) TMI 1516X X X X Extracts X X X X X X X X Extracts X X X X ..... dmitted liability in respect of duty are also considered by the Tribunal and financial condition is also considered. Due to the orders made by this Court of allowing the petitions, the Tribunal gave more concession and the pre-condition amount was reduced. Unfortunately, such orders are made by the Tribunals and the Courts after the order of remand of the matter made by this Court. By filing proceedings in this Court and by filing applications for waiver of the pre-condition, the petitioner has apparently misused the process of law and petitioner has successfully avoided the payment of huge amount of duty, penalty and interest for more than 10 years. Proceedings dismissed. - WRIT PETITION NO. 5885 OF 2015 WITH WRIT PETITION NO. 1346 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake it ₹ 12 lakh. As already amount of Rs. six lakh was deposited, the remaining amount was deposited by the petitioner and then the appeal was decided by C.E.S.T.A.T. The matter was remanded back by C.E.S.T.A.T. to Assistant Commissioner, Central Excise. The Assistant Commissioner maintained the previous order by deciding the matter in the year 2013. This order was again challeneged before C.E.S.T.A.T. and this time for entertaining this appeal C.E.S.T.A.T. directed the petitioner to deposit ₹ 20 lakh as pre-condition for filing the appeal. 3. In the second proceeding, the liability of duty was assessed at ₹ 2.73 Crore and penalty of ₹ 1.35 Crore was also imposed for getting redemption of capital goods which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of the period starting from the date of setting up of the company and all these orders are challenged by the petitioner company. In addition to present two petitions, there are three other petitions of the petitioner company like Writ Petition No. 2492/12, 2493/13 and 2532/12. The submissions made and the record show that total liability of the company to the respondents is more than ₹ 20 Crore at present and the liability may be more if the interest amount is considered. The submissions made and the record show that the other Court had made order in one petition to deposit amount of ₹ 21 lakh for getting the interim relief, but this order is not complied with. There was interim relief in the present two proceedings gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard the interests of revenue: 7. The aforesaid provision of Central Excise Act shows that discretionary power is given to C.E.S.T.A.T., the appellate forum and the appellate forum can dispense with the pre-condition of depositing the amount of duty, penalty etc. if such condition would cause 'undue hardship' to the appellant (emphasis added). 8. When the matter involves use of discretion by Court/Tribunal, in ordinary course, the appellate Court or this Court in a proceeding like present one is not expected to interfere with such order. This Court can only ascertain as to whether for refusal to use discretion, there were some circumstances including the conduct of the party and whether case of undue hardship is made out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department and the learned counsel for the petitioner company was asked to explain the things before the Tribunal also. There was no record to show that the goods which were cleared in domestic market were manufactured from indigenous domestic material alone. Further, there was no D.T.A. permission and goods were cleared in domestic market in the names of various fictitious units. Three units found on the record were being managed by the same family. These manufacturing units were not having manufacturing facilities of their own and they had tried to show that goods were manufactured by outsourcing. This claim was found to be false and it was noticed that the units of the petitioner were used for manufacturing of the goods of these fict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention of the petitioner company that it was declared as sick unit cannot be considered. The discretionary power cannot be used in favour of such company, persons. 12. From the aforesaid circumstances, it can also be said that due to the orders made by this Court of allowing the petitions, the Tribunal gave more concession and the pre-condition amount was reduced. Unfortunately, such orders are made by the Tribunals and the Courts after the order of remand of the matter made by this Court. By filing proceedings in this Court and by filing applications for waiver of the pre-condition, the petitioner has apparently misused the process of law and petitioner has successfully avoided the payment of huge amount of duty, penalty and interest f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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