TMI Blog2008 (10) TMI 215X X X X Extracts X X X X X X X X Extracts X X X X ..... an order refusing to dispense with pre-deposit. But, the petitioner has not chosen to prefer any appeal and on this ground also the writ petition is liable to be dismissed - 10428, 11144 of 2005 - - - Dated:- 31-10-2008 - S. Nagamuthu, J. S/Shri Raghavan for R. Karthikeyan, for the Petitioner. Shri C. Arul Vadivelu @ Sekar ASG, for the Respondent. [Order].- By consent of both parties the writ petition itself is disposed of. 2. The adjudicating authority under the Central Excise Act confirmed the demand of Rs. 41,29,014/- and Rs. 9,73,159/- and imposed a penalty of Rs.14,000/- on the petitioner by order in Original No.19 of 2002 dated 28-2-2002. Challenging the same, the petitioner preferred an appeal to the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the writ petition is liable to be dismissed for two reasons. According to him, the order which is under challenge is an appellable order and so this writ petition is not maintainable. He would further submit that in the petition filed before the appellate tribunal except making a vague assertion that the petitioner would be put to undue hardship, there is no other materials made available justifying his request for dispensation with the pre-deposit. He relies on a judgment of the Honourable Supreme Court in Benara Valves Ltd. v. commissioner of Central Excise, 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R.104 (S.C.). 5. I have considered the rival submissions. In the petition filed before the tribunal seeking to dispense with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... important expressions in Section 35(F). 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 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 have to observe or perform the requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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