Pre-deposit waiver must be judged on current financial hardship, not outdated accounts, before the appellate authority.

The Madras HC held that refusal of waiver of pre-deposit under Section 35F of the Central Excise Act could not stand where the Appellate Authority had not considered the appellant's latest financial position. The authority had relied on an earlier balance sheet and concluded that no undue hardship was shown, but undue hardship must be assessed on the financial condition as at the time of consideration. The order was set aside and the matter was remitted for fresh decision after giving the appellant an opportunity to produce the relevant balance sheet and profit and loss account.

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Issues: Whether the order refusing waiver of pre-deposit pending appeal under Section 35F of the Central Excise Act, 1944 was sustainable without considering the appellant's latest financial position.

Analysis: The refusal of waiver was based on the view that the appellant had no prima facie case and that payment of the assessed duty would not cause undue hardship. The balance sheet for an earlier year had been considered, but the latest balance sheet and profit and loss account for the relevant year had not been produced or examined. Since the question of undue hardship depends on the financial position as on the date of consideration, the appellant was entitled to an opportunity to place the latest financial materials before the Appellate Authority.

Conclusion: The order refusing waiver was set aside and the matter was remitted to the Appellate Authority for fresh consideration of the waiver application after giving the appellant an opportunity to produce the latest balance sheet.

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