TMI Blog2008 (7) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the BIFR does not merit acceptance. Thus no infirmity in the order of the Tribunal so as to warrant any intervention by this Court. - 4052 of 2008 - - - Dated:- 30-7-2008 - D.A. Mehta and H.N. Devani, JJ. [Judgment per : H.N. Devani, J. (Oral)]. - By this petition, the petitioner has prayed for the following substantial relief : "Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari, or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 26-11-2007 at Annexure-D passed by the CESTAT, Ahmedabad." 2. The petitioner company is a registered export oriented unit and is engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. In a strong prima facie case of clandestine removal like this, the company showing losses appears nothing unusual. 5. We hold that the applicant, M/s. Navpad Textiles Industries Ltd., have not made out a strong case for waiver of pre-deposit of dues as per the impugned order and therefore we direct that the applicant shall deposit a sum of Rs. 50 lakhs (Rupees fifty lakhs only) towards duty within 12 weeks and report compliance on 4-2-08. Subject to deposit of the amount as above, the deposit of balance amount of duty and the entire amount of penalty is waived and recovery thereof stayed. Failure to comply with this order will result in dismissal of the appeal without further notice to the applicant. 6. As regards the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iver of pre-deposit amount. It was vehemently contended that the Tribunal has not addressed itself to the issue regarding the petitioner having been declared to be a sick industrial unit by the BIFR and has directed the petitioner to deposit Rs. 50 lakhs instead of granting full waiver of pre-deposit. 5. The Supreme Court in the case of Indu Nissan Oxo Chemicals Ind. Ltd. v Union of India (Civil Appeal No. 5795 of 2007 - 2008 (221) E.L.T. 7 (S.C.) has in the context of the provisions of section 129-E of the Customs Act, which are pari materia to the provisions of section 35F of the Central Excise Act, laid down thus: "14. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plank of the submissions advanced by the learned Counsel for the petitioner is that the petitioner having been declared a sick industrial unit by the BIFR, the Tribunal ought to have granted full waiver of the pre-deposit. By an order of even date passed in Special Civil Application No. 2968 of 2008, this Court has considered a similar issue and has after considering the claim of the petitioner therein in the light of the decisions on which reliance had been placed by the learned Counsel for the parties, upheld the impugned order of the Tribunal whereby the petitioner therein was directed to deposit part of the duty amount. Though a distinction was sought to be drawn in the present case, on the ground that specific averments were made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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