TMI Blog2008 (10) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... order made under Section 35F is appealable which includes 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. - 4126 of 2006 - - - Dated:- 31-10-2008 - S. Nagamuthu, J. [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. 25,89,250/- and imposed a penalty of Rs. 25,00,000/- on the petitioner by Order-in-Original No. 1 of 2004 dated 19-1-2004. Challenging the same, the petitioner preferred an appeal to the Commissioner of Central Excise (Appeals) in Appeal No. 154 of 2004. The appellate authority co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order which is under challenge is an appealable 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 pre-deposit, the petitioner has not made out any case to establish undue hardship t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it. 14. The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interest of revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate condition as required to safeguard the interest of revenue." As per the law laid down by the Honourable Supreme Court it is incumbent on the part of the petitioner to establish that he would suffer undue hardship if the amount is recovered from him. Thus the petitioner has not made out any case to dispense with the pre-deposit. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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