2010 (2) TMI 924

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....t the petitioner had not been able to make out a case for total dispensation of duty and penalty, and also the subsequent orders of the learned Tribunal dismissing the appeal for non-compliance of the direction of the Tribunal to pre-deposit Rs. 4,00,000/- as contained in the order impugned. 2. The petitioner was engaged in the manufacture of bars and rods of non-alloy steel, which were excisable goods classified under sub-heading No. 72 14.90 of the schedule to the Central Excise Tariff Act, 1985, at its factory at Howrah. 3. On or about 1st September, 1997, ad valorem rate of duty earlier levied in respect of the excisable goods manufactured by the petitioner was withdrawn and duty was levied under Section 3A of the Central Ex....

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....In the Affidavit-in-Opposition affirmed by Thambi Raj Abraham, Assistant Commissioner, Central Excise, Howrah North-I Division, on behalf of the respondents, the letter dated 19th August, 1998 is admitted. It is, however, contended that the option was not for the period in dispute, but for the next financial year, that is, 1999-2000. The assessment, in this case, pertains to the financial year 1999-2000, and not any earlier financial year. 11. In Union of India v. Supreme Steels and General Mills, reported in 2001 (133) E.L.T. 513 cited by Mr. Chakraborty, the Supreme Court held that it was optional for a manufacturer to opt for payment of excise duty in accordance with sub-rule (3) of Rule 96ZP on the basis of total furnace capacity.....

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....emand of duty (Rs.) 1. 3rd November, 1999 April, 99 to September 99 4,06,380.00 2. 4th April, 2000 Oct. 99 to Feb. 2000 3,38,650.00 3. 27th February 2001 March 2000 63,730.00 TOTAL 8,08,760.00 16. According to the petitioner, the petitioner duly replied to the show-cause notices. The notices were adjudicated by the Assistant Commissioner of Central Excise by orders-in-original dated 22nd November, 2001, 22nd May, 2003 and 30th April, 2003. The adjudicating authority confirmed the demand of duty and imposed penalty of equal amount of duty and also interest. 17. The petitioner appealed against the aforesaid orders-in-original to the Commissioner of Central Excise (Appeals). 18.  By the order dated 25th November....

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....earing on 13-5-2005." 20. As held by the Supreme Court in Union of India & Anr. v. Adani Exports Ltd. & Anr. [(2007) 13 Supreme Court Cases 207 = 2007 (218) E.L.T. 164 (S.C.) = 2009 (13) S.T.R. 81 (S.C.)], cited by Mr. Bag appearing on behalf of the respondent, for dispensation of pre-deposit, three aspects have to be considered, that is, the prima facie case, the balance of convenience and irreparable loss. These requirements are imperative under Suction 129E of the Central Excise Act, 1944. 21. In the instant case, the Tribunal has disposed of the stay application cursorily, by recording that the appellant had not been able to make out a case for total dispensation of duty and penalty. It appears that the Tribunal proceeded on....

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.... of India & Ors., reported in (2007) 13 Supreme Court Cases 487 = 2008 (221) E.L.T. 7 (S.C.), the Supreme Court found that there was no infirmity in the order of the Tribunal for pre-deposit as affirmed by the High Court. 26. Mr. Bag emphasized Paragraph 12 of the judgment in Indo Nissan Oxo Chemical Industries (supra), where Supreme Court has relied on its earlier judgment in Benara Valves Ltd. v. CCE [(2006) 13 SCC 347 = 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.)], and held, that for hardship to be undue it had to be shown that a particular burden to observe or perform the requirement was out of proportion to the nature of the requirement itself and the benefit which the applicant would derive from compliance with it....