Pre-deposit waiver and stay of recovery are incidental powers under Section 35F when undue hardship is shown.

Section 35F of the Central Excise Act makes pre-deposit mandatory, but its proviso allows the Tribunal to dispense with deposit on proof of undue hardship, subject to revenue-protective conditions. The power to grant such dispensation would be ineffective if recovery could proceed at the same time, so authority to stay recovery follows as an incidental and ancillary power. On the facts, the material placed was insufficient to establish undue hardship, and the conditional order was held to be within jurisdiction. The challenge to the Tribunal's power therefore failed.

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Issues: Whether the Tribunal had power under Section 35F of the Central Excise Act, 1944 to waive pre-deposit and, as an incidental and ancillary consequence, restrain recovery of the disputed duty or penalty.

Analysis: Section 35F makes pre-deposit mandatory, but its proviso empowers the Tribunal to dispense with such deposit where undue hardship is shown, subject to conditions safeguarding revenue. The power to grant dispensation would be ineffective if the department could simultaneously recover the amount, and therefore the authority to stay recovery follows as an incidental and ancillary power. On the facts, the material produced was found insufficient to establish undue hardship, and the conditional order was within jurisdiction.

Conclusion: The Tribunal had jurisdiction to pass the impugned order, and the challenge to its power under Section 35F failed.

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