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TMI Blog1991 (8) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner has stated that it read made a claim for a sum of Rs. 3,00,99,579.96 and it had obtained two refund orders to the tune of Rs. 3,38,75,548.60 payable by the respondents and under such circumstances, it is stated that the insistence of depositing a sum of Rs. 2,67,06,353.25 made by the 1st respondent as against the petitioner need not be given effect to as against the two refund orders obtained by the petitioner and the same is insisted upon the petitioner, it will cause undue hardship to the petitioner, and therefore, the petitioner has requested to dispense with such deposit of Rs. 2,67,06,353.25 and for stay of recovery of the said amount. By the impugned order, the 2nd respondent has directed the petitioner to deposit 25% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een passed in favour of the petitioner and in such circumstances the 1st respondent ought to have considered the same when the application filed under Section 35F of the Act was taken up. It is further contended by the learned Counsel for the petitioner that the impugned order has been passed mechanically with total non-application of mind on the part of the 1st respondent. Section 35F of the Central Excises and Salt Act, 1944 reads as follows : 'Section 35F. Deposit, pending appeal, of duty demanded or penalty levied : Where in any 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am of the view that the impugned order has to be set aside on the simple ground that when the petitioner has obtained refund orders to the tune of Rs. 3,38,75,548.60 payable by the Department, the 1st respondent ought to have taken note of this fact before passing the impugned order. The authority has proceeded mechanically without application of mind while passing the impugned order. In my view, as against the refund orders obtained by the petitioner, the Department need not insist upon the petitioner to pay the duty, especially, when the petitioner undertakes not to withdraw the amount referred to in the refund order. In 1986 (23) E.L.T. 74 the single Judge of the Calcutta High Court has pointed out in a similar situation, that when the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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