2014 (2) TMI 357 - HC - Central Excise

High Court Upholds CESTAT's Decision on Pre-Deposit, Emphasizes Prima Facie Case and Undue Hardship

COMMISSIONER OF CUSTOMS & C. EX., SALEM Versus VISAKA INDUSTRIES LTD.

COMMISSIONER OF CUSTOMS & C. EX., SALEM Versus VISAKA INDUSTRIES LTD. - 2014 (299) E.L.T. 199 (Mad.) Issues Involved:1. Waiver of pre-deposit under Section 35F of the Central Excise Act, 1944.2. Prima facie case and undue hardship.3. Judicial review of CESTAT's findings.Detailed Analysis:1. Waiver of Pre-deposit under Section 35FThe primary issue is whether the factual findings by CESTAT that the assessee did not make out a prima facie case or demonstrate undue hardship to waive the pre-deposit under Section 35F of the Central Excise Act, 1944, could be set aside through judicial review without showing such findings to be perverse.2. Prima Facie Case and Undue HardshipThe assessee, engaged in manufacturing asbestos cement sheets, was issued a show cause notice for wrongly availing exemption from Central Excise duty. The Commissioner of Central Excise confirmed the demand, directing the assessee to pay Rs. 13,23,85,374/- along with interest and penalty. The assessee appealed to CESTAT and sought a waiver of pre-deposit. The Vice-President of the Tribunal found a strong prima facie case for waiver, but the Technical Member disagreed, leading to a referral to a Third Member. The Third Member agreed with the Technical Member, finding the assessee failed to prove eligibility for the exemption and directed a pre-deposit of Rs. 4,50,00,000/-.The Single Judge allowed the writ petition, inferring a strong prima facie case for the assessee. However, the Revenue contended that CESTAT's detailed reasons were disregarded and the finding of no undue hardship was ignored.3. Judicial Review of CESTAT's FindingsThe High Court emphasized that judicial review under Article 226 of the Constitution does not function as an appellate authority but focuses on the decision-making process. The court should not re-appreciate materials to arrive at a different conclusion unless the order is perverse. The dissenting and subsequent orders by CESTAT contained substantial materials indicating the assessee did not show a prima facie case or undue hardship.The Supreme Court's precedent in Benara Valves Ltd. v. Commissioner of Central Excise was cited, highlighting the necessity of demonstrating undue hardship and safeguarding the interests of the Revenue. The Court noted that undue hardship must be proven by the applicant and that mere assertions are insufficient.ConclusionThe High Court concluded that the Single Judge erred in upsetting CESTAT's findings. The CESTAT's order was restored, and the assessee was given time until 31 August 2012 to make the pre-deposit. The writ appeal was allowed, and the Single Judge's order was set aside.