2006 (11) TMI 6 - SC - Central Excise

Section 35F requires proof of undue hardship and permits imposing security or conditions to protect government revenue

BENARA VALVES LTD. & ORS. Versus CCE & ANR.

SC held that Section 35F requires twin considerations: establishment of 'undue hardship' by the applicant and imposition of conditions to safeguard ... Principles governing the grant of stay pending - Questioning correctness of the order passed by the tribunal - prayer for dispensation of deposit was rejected - Recovery of duty and imposition of penalty - clandestinely removing excisable goods without payment of duty​​​​​​​ - expressions used in provision 35(F) are 'undue hard- to such person' and 'safeguard the interests of revenue' - Appellants submitted that demands raised will not stand the test of appeal as correct legal and factual position were not kept in view while adjudicating the issues HELD THAT:- Two significant expressions used in the provisions of 35-f are 'undue hard- to such person' and 'safeguard the interests of revenue'. Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safe-guard the interest of Revenue have to be kept in view. As noted above there are two important expressions in Section 35(F). One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. 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. In the instant case Tribunal has rightly observed that the rival stands have to be examined in detail with reference to material on record. Considering the nature of the dispute and the difficulties highlighted by the appellants seeking dispensation of deposit, we direct that the appeals shall now be heard without requiring further deposit, if the appeals are free from other defects in accordance with law. However, for the balance of the amount demanded, with a view to safeguard interest of the Revenue, the appellants shall furnish such security as may be stipulated by the Tribunal. Aappeals are accordingly disposed of. Issues:Challenge to order passed by Customs Excise and Service Tax Appellate Tribunal; Correctness of order questioned in writ petitions; Extension of time granted by High Court; Prayer for dispensation of deposit rejected; Principles relating to grant of stay pending disposal of matters; Interpretation of Section 35F of Central Excise Act; Consideration of undue hardship and safeguarding revenue interests in stay applications; Examination of rival stands and reduction of deposit amounts; Payment made by appellants; Direction for further deposit or furnishing security by Tribunal.Analysis:The judgment involves the challenge to an order passed by the Customs Excise and Service Tax Appellate Tribunal, which was questioned in writ petitions before the Allahabad High Court. The issue revolved around the correctness of the order, which dismissed the appellants' plea for staying the recovery of duty and penalty pending the disposal of appeals before the Tribunal. The appellants were accused of clandestinely removing excisable goods without payment of duty, leading to demands and penalties imposed by the Commissioner of Central Excise, Kanpur.The High Court granted an extension of time to comply with the Tribunal's order but rejected the prayer for dispensation of the deposit. The legal representatives of both parties presented their arguments, with the appellants claiming that the demands were unjustified, while the respondents argued that no relief should be granted to dishonest manufacturers involved in manipulations and evasions.The judgment delves into the principles governing the grant of stay pending the disposal of matters before relevant forums, emphasizing the need for judicial exercise of discretion in such cases. Citing precedents like Silliguri Municipality and others, the judgment highlights the importance of analyzing the factual scenario of each case before deciding on stay applications.The interpretation of Section 35F of the Central Excise Act is crucial, focusing on the twin requirements of considering undue hardship to the appellant and safeguarding the revenue interests. The judgment clarifies that undue hardship must be proven by the applicant and relates to economic hardship disproportionate to the circumstances. Additionally, the Tribunal is tasked with imposing conditions to protect revenue interests while dealing with such applications.In this specific case, the Tribunal rightly noted the need to examine the rival stands thoroughly with reference to the material on record. The judgment also addresses the question of whether a reduction in the deposit amounts directed by the Tribunal is warranted. Considering the payments made by the appellants and the nature of the dispute, the judgment directs that further deposit may not be required for hearing the appeals, provided they are free from defects. However, the appellants are instructed to furnish security for the remaining demanded amount to safeguard revenue interests.Ultimately, the appeals are disposed of without costs, with the Tribunal directed to proceed accordingly based on the judgment's directives regarding deposit and security requirements.