TaxTMI 
TaxTMI 
TaxTMI 
2011 (9) TMI 503
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.... the First Schedule to the Central Excise Tariff Act, 1985. The Appellant having been found to have committed certain irregularities in relation to the excise law, hence a Show Notice dated 30th January, 2009 was issued to the Appellant which was contested by them by filing reply dated 1st May, 2009. After receipt of reply, the Assistant Commissioner, Lucknow by the order dated 29th January, 2010 confirmed the demand to the tune of Rs. 4,86,472 while appropriating an amount of Rs. 4,86,500 already deposited by the Appellant and also ordered payment of interest on the said amount of duty, besides imposing equal amount of penalty. Further, 27775.00 kgs., plastic granules valued at Rs. 26,94,175 were ordered to be confiscated while giving option to redeem the same on payment of redemption fine of Rs. 6,75,000 and further, penalty of Rs. 38,850 was also imposed under Rule 15(1) of the CENVAT Credit Rules, 2004. Being aggrieved, the Appellants filed an appeal before the Commissioner (Appeals) along with application for dispensing with the requirement of predeposit. The said application was disposed of by an order dated 1st June, 2010 directing to deposit of 50 per cent of the entire amo....
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....rder except in one case, and that too for justifiable reason. Besides, the requests for modification of those orders were rejected after hearing the parties and thereafter the appeals were dismissed. In fact, dismissal of the appeal is a consequence of non-compliance of requirement under Section 35F. There is no option left in that regard to the Appellate Authority unless the Appellants are able to make out a case to that effect and undisputedly opportunity to make out a case in that regard was granted to the Appellant. Being so, we do not find any illegality in the impugned orders nor it can be said that the orders which were passed on the stay applications are vitiated in any manner. 5. A plain reading of the aforesaid order reveals that decision of Appellate Authority was in pursuance of non-compliance of requirement under Section 35F. 6. While assailing the impugned order, Sri S.M.K. Chaudhary learned Senior Counsel would submit that a decision dated 23rd May, 2011, rendered by the Division Bench of this Court of which one of us (Hon'ble Mr. Justice Devi Prasad Singh) was a member, is based on different facts and hence is not applicable. Further submission is th....
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....tion in such a way to safeguard the interests of both the Revenue and the Assessees. 10. The observations made by Hon'ble Supreme Court does not seem to extend any help. Even if the observations of the Hon'ble Supreme Court is taken into account, there is no reason to record a contrary finding than what has been recorded by the Tribunal for the reason that the Appellate Authority has exercised discretion to balance the right of parties while passing the order dated 1st June, 2010 in pursuance of the proviso to Section 35F of the Act. The provisions of Section 35F is reproduced as under:- 35-F. Deposit, pending appeal, of duty demanded or penalty levied. When in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authority or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the Adjudicating Authority the duty demanded or the penalty levied. Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that t....
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....ve approached the higher forum against the original order passed under Section 35F of the Act. He represented with regard to subsequent order for waiving of 20 per cent deposit. The Appellate Authority has rightly rejected the application for waiving of 20 per cent deposit without providing opportunity of hearing. There is no other aspect of the matter. It is not a case, where the Appellate Authority had not applied its mind with regard to Appellant's undue hardship. In the present case, the Appellate Authority himself had directed the Appellant to deposit 20 per cent of the duty as well as penalty. It means the Appellate Authority himself has considered the Appellant's undue hardship on the basis of material on record. Accordingly, the ratio of the judgment of Hon'ble Supreme Court in the case of Benara Valves (supra) is not applicable. Learned Counsel for the Appellant has relied upbn another judgment of Hon'ble Supreme Court in Dinesh International Ltd. v. Union of India and Anr. 2009 17 SCC 626. In the case of Dinesh International Ltd. (supra), their Lordship of Hon'ble Supreme Court has held that dismissing the appeal on account of Assessee's delay in making pre-deposi....
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....ioner (Appeals) or Appellate Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals), as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of revenue. The emphasis is to secure the interest of Revenue. The purpose of the provision is that while passing any order, it shall be incumbent on the Appellate Authority to ensure that tax imposed or penalty levied, in any case, be not frustrated and the Assessee may not escape the liability with regard to the payment of duty for any reason whatsoever. The proviso further provides that whenever an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. Thus the provisions contained with regard to disposal of application also seems to be mandatory. Meaning thereby whenever an application is moved, it shall be decided wi....