Pre-deposit waiver and financial hardship: Tribunal must assess the appellant's ability to pay before insisting on deposit.

The proviso to section 35F required the Tribunal to consider the appellant's financial position before insisting on pre-deposit of excise duty and penalty. As that aspect had not been examined, the condition directing cash deposit was treated as harsh and unjust. The pre-deposit order was quashed, and the matter was remitted for fresh consideration of the waiver/stay application after giving the appellant an opportunity to establish financial hardship.

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Issues: Whether the Tribunal was justified in directing pre-deposit of the excise duty and penalty amount without considering the appellant's financial position under the proviso to section 35F of the Central Excises and Salt Act, 1944, and whether the order directing deposit was liable to be quashed and the matter remitted for fresh consideration.

Analysis: The writ petition challenged the condition of pre-deposit imposed while deciding the stay-waiver application in the second appeal. The material on record showed that the Tribunal had not considered the appellant's financial capacity while insisting on deposit of a substantial amount in cash. The statutory requirement under the proviso to section 35F obliged consideration of the financial position for waiver of deposit, and the Court found that this aspect had not been examined by the Tribunal. In the circumstances, the impugned condition was found to be harsh and unjust, and the proper course was fresh consideration of the waiver/stay request after giving the appellant an opportunity to establish financial hardship.

Conclusion: The pre-deposit order was quashed and the matter was remitted to the Tribunal for fresh decision on the waiver/stay application after considering the appellant's actual financial position.

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