TMI Blog2004 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... emand of Central Excise duty to the tune of Rs. 19,69,836/- has been confirmed by the Commissioner Central Excise (Appeals) which covers two periods i.e. June to March, 1994 amounting to Rs. 7,98,225/- and April to July, 1994 amounting to Rs. 11,71,611/-. The petitioners preferred an appeal before the Tribunal. Along with the appeal an application for waiver of pre-deposit of the duty was also made. The Tribunal by the impugned order had found that the merits .of the case are debatable and the financial position of the company is sound as they have cash in hand nearly Rs. one crore besides other assets etc. to the tune of Rs. seven crores. As seen from the balance sheet of 2002-2003. The Tribunal, however, granted partial waiver of pre-depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a good financial condition. The arguments that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding the application. The order of the Appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with law. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned in the eyes of law and we have no option but to allow this petition and set aside the order impugned." 5. Sri Singh submitted that as the financial position of the petitioner was sound and, therefore, the Tribunal was justified in declining the full waiver of pre-deposit. 6. Be that as it may, the Court finds that the Tribunal has not taken into consideration the principle laid down by this Court in the case of I.T.C. Ltd. referred to above. In this view of the matter, the order dated 26-7-2004 passed by the Tribunal is set aside. The Tribunal is directed to pass an order on the application for waiver afresh in accordance with law in the light of the observations made above. 7. The writ petition succeeds and is allowed. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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