TMI Blog2002 (1) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner-company for modification of the said order dated August 30, 2000 praying that it should not be required to make any pre-deposit. 2.The basic dispute between the petitioner-company and the Central Excise Authorities is whether duties were required to be paid on duty paid jute fabrics after lamination. According to the Central Excise authorities such duty was required to be paid after lamination, the quantum thereof being equal to the duty already paid on the jute fabrics and the case of the petitioner is that by reason of a Notification bearing No. 53/65-C.E., dated March 20, 1965 and a circular dated March 24, 1965 contemporaneously issued by the Central Board of Revenue (hereinafter referred to as the Board). No further duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid order passed by the learned Commissioner. 4.The petitioner filed the said petition seeking waiver of the condition of pre-deposit of the Central Excise duty of Rs. 86,54,836/- and penalty of Rs. 9 lacs imposed on the petitioner company by the order passed by the Commissioner dated 28th February, 2000. The said application was heard and disposed of on 30th August, 2000 by the CEGAT rejecting the prayer of the petitioner. CEGAT came to the conclusion that the case is arguable from both the sides. Having regard to the facts and circumstances of this case, the Commissioner directed the appellants to deposit Rs. 10 crores towards duty by 15th November, 2000 and the matter was kept for compliance on 20th November, 2000. Subject to payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on has been filed before this Court. The petitioner has submitted that the said Tribunal has failed to exercise the discretion in favour of the petitioner. 8.Learned Counsel appearing on behalf of the petitioner contended that the proviso also relied upon 1991(53) E.L.T. 543 [J.N. Chemical (Pvt.) Ltd. v. CEGAT) and directed the Tribunal to entertain and to decide the appeal in accordance with law by dispensing with the requirement of pre-deposit of the amount of excise duty and penalty in dispute on the finding that the case of the appellant was fully covered by the authority and the Tribunal ought not to have insisted upon pre-deposit. He further relied upon another judgement reported in 1989 (39) E.L.T. 178 (Vijay Prakash Mehta v. Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uing a notification bearing No. 92/94-C.E., dated April 25, 1994. He further contended that the petitioner company and other manufacturers similarly situated had bona fide proceeded on a particular view of the notification and circular and no intention or motive could be imputed to the petitioner company so as to invoke the proviso to Section 11A(1) of the Act. 11.Learned Counsel relied upon the following judgements of the Hon'ble Supreme Court in respect thereof :- 1994 (73) E.L.T. 257 - (Lubri-Chem Industries Ltd. v. Collector of Central Excise); 1995 (75) E.L.T. 721 - Cosmic Dye Chemical v. Collector of Central Excise; and 1995 (78) E.L.T. 40l - Pushpam Pharmaceuticals Company v. Collector of Central Excise. 12.He further cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts contended before this Court that the Tribunal CEGAT has given substantial relief by way of waiving pre-deposit and submitted that the Tribunal has directed the pre-deposit only Rs. 10 lacs against the adjudication amount exceeding Rs. 96 lacs. He further contended that the discretion has been exercised substantially in favour of the petitioner, as such there is no cause of interference with such exercise of discretion. 16.After considering the facts and circumstances of this case only at this stage it is to be decided by the Court whether CEGAT has passed the said order dated August 30, 2000 after taking into account the financial hardship as stated by the company before the said Tribunal. As it appears from the order passed by the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furthermore the said aspect has not been taken into account properly in my opinion by the CEGAT at the time of hearing of the modification application or the other application. Accordingly, in my opinion, the plea of financial hardship has to be taken into account by the Court for the interest of the justice in favour of the petitioner and I do not have any hesitation to agree with the opinion expressed by the Hon'ble Division Bench of this High Court in "J.N. Chemical (Pvt.) Limited v. CEGAT reported in 1991 (53) E.L.T. 543 where the Court has come to the conclusion which may be reproduced hereunder :- "These judicial pronouncements of high authority show that even where enabling or discretionary power is conferred on a public authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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