TaxTMI 
TaxTMI 
2011 (6) TMI 118
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....sp;(ii) Whether in facts and circumstances of the case and in law, Respondent No. 2, the Tribunal, is justified in not considering the prima facie case made out by the Appellant on the basis of a chart as well as the annexure to the Show Cause Notice wherein the Department has admitted that Naphtha procured under an exemption notification was in short supply and the gap of steam is bridged by using steam generated out of natural gas; whereas in earlier proceedings the Tribunal has considered this aspect of use of natural gas and remanded the matter to re-calculate the demand on the basis of charts submitted by the Appellant. 2. The appeal is admitted and is taken up for hearing and final disposal on the request of Counsel appearing on behalf of the Appellant and the Respondents. 3. The Appellant is a Public Sector Undertaking and is a Government Company within the meaning of section 617 of the Companies Act, 1956. The Appellant engages in the manufacture of fertilizers and other chemicals, falling under Chapter Heading 29 and 31 of the Central Excise Tariff Act, 1985. The Appellant has a factory at Thal, in the District of Raigad and has set up a Steam Generation Plant, whi....
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....nsel submitted that Tribunal launched upon a detailed enquiry into the merits of the case in the manner that it was disposing of an appeal finally. At the stage of consideration of the application for a waiver of pre-deposit, the Tribunal was only required to consider as to whether a prima facie case was made out, which requires a serious evaluation at the final hearing of the appeal. 6. On the other hand, Counsel appearing on behalf of the Revenue has supported the order of the Tribunal by submitting that each one of the submissions, which was urged before the Tribunal has been carefully considered and hence, it is urged that no case for interference in the appeal would arise. 7. At the outset, it would be necessary for the Court to consider as to whether the Appellant is justified in its submission that the mere fact that it is an Undertaking of the Central Government and a Government Company within the meaning of section 617 of the Companies Act, 1956 would justify the grant of a complete waiver of the requirement of pre-deposit. Section 35F provides that where in any appeal under the Chapter, the decision or order appealed against relates to any duty demanded in respect of go....
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.... Government. The requirement of pre-deposit has been enacted to ensure that litigants do not by protracting litigation, delay the realisation of the revenue dues of Government. The need to safeguard the interests of the revenue is integral to legislation requiring pre-deposit. That need has to be carefully balanced with the concerns of justice to the appellant in each case. Hence, the discretion of the Tribunal cannot be placed into a strait jacket. Each case has to be judiciously evaluated. We have adverted to some of the considerations but they are illustrative and not exhaustive. The Excise Manual does not preclude the exercise of discretion by the Tribunal nor can it so be construed. In each case, the Tribunal as Appellate Authority has to apply its mind judiciously to the circumstances which are mandated by the statute and determine as to whether a case of undue hardship within the meaning of the proviso to section 35F has been made out. 8. On behalf of the Appellant, it is sought to be urged that this Court in several decisions has taken the view that an order of waiver or dispensation is warranted where the Appellant is a Central Government Undertaking. In this regard, reli....
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.... this Court was dismissed by the Supreme Court on 5-4-2010 (Union of India v. Hindustan Petroleum Corporation Ltd. [2010] (257) ELT A22 (SC). In a subsequent order of the Division Bench dated 16-9-2009 in Bharat Petroleum Corpn. Ltd. v. Union of Indian Writ Petition 7478 of 2009 the earlier decision in Hindustan Petroleum Corpn. Ltd. (supra) was followed. Another Division Bench followed the first decision in Hindustan Petroleum Corpn. Ltd. (supra) in Union of India v. Hindustan Petroleum Corpn. Ltd. CE Appeal (L) Nos. 52 & 53 of 2010, dated 15-9-2010. Counsel appearing on behalf of the Appellant placed reliance on the judgment of the Supreme Court in Bharat Petroleum Corpn. v. Commissioner of Sales Tax (Civil Appeal No. 4933 of 2008 dated 7-8-2008). In that case, the issue which arose for determination in a pending statutory appeal before the Assistant Commissioner of Sales Tax was, whether the sale of Superior Kerosene Oil by Bharat Petroleum Corporation Ltd. to another oil company through the Public Distribution System was exempted from sales tax in terms of an exemption notification issued by the Government of Orissa. In an application for stay, the Appellant was called upon to ....
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.... the ground that the Naphtha that is acquired is for the intended use of manufacture of fertilizers. In this regard, in order to support its case, the Appellant placed reliance on a judgment of the Supreme Court in State of Haryana v. Dalmia Dadri Cement Ltd. 2004 (178) ELT 13 and more particularly on the following observations contained in paragraph 13 of the judgment : "We are, therefore, of the view that the real question which we are called upon to determine is whether, in the present case, the cement supplied was intended for use directly in the generation or distribution of electrical energy. If it was so intended, the exemption was attracted but not otherwise. The certificates which we have referred to earlier issued by the Board clearly show that the intention of the Board was that the cement should be used for a purpose directly connected with the generation or distribution of electrical energy. There is no material to show that the certificates were false certificates given by the Board, having another use in mind, or that they were fraudulently obtained by the assessee in collusion with the Board. The mere fact that some of the cement supplied was, in fact, used by the ....