2013 (7) TMI 129

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....l No.E/95/2008, pending before the Tribunal raising the following substantial question of law: "1. Whether the Honourable Tribunal was right in rejecting the application for extension of stay originally granted by its order dated 23.01.2009 in the light of the decision of the Honourable Apex Court in the case of Commissioner of Customs & Central Excise, Ahmedabad Vs. Kumar Cotton Mills Pvt. Ltd., reported in 2005 (180) E.L.T.434 (S.C.)? 2. Whether the Honourable Tribunal was right in ordering pre-deposit of duty in terms of Section 35F of the Central Excise Act, 1944 when the duty payable was not determined by the competent authority under Section 1A of the Central Excise Act, 1944?" 2. The assessee is a manufacturer of steam boile....

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.... though the assessee pleaded financial hardship, there was no proof. In the circumstances, taking note of the status of the assessee as a small scale industrial unit, the Tribunal directed the assessee to pre-deposit part of the amount of duty demanded. The petition for modification filed by the assessee was again dismissed under order dated 02.07.2008 granting further two weeks time and report compliance on 22.7.2008. As against this order passed directing deposit of Rs.5.00 lakhs, the assessee filed W.P.No.16994 of 2008. 5. Although, on admission this Court granted interim stay of the order, it is seen from the order passed by this Court on 29.10.2008 in M.P.No.1 of 2008 in W.P.No.16994 of 2008 that the interim order originally granted....

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....d an application for early hearing of the appeal, which was, however, rejected. In paragraph 2 of the order, the Tribunal pointed out that with the withdrawal of the Writ Petition filed challenging the order of the Tribunal on pre-deposit of Rs.5.00 lakhs, the assessee had clearly acquiesced in the requirement of pre-deposit of the said amount of Rs.5.00 lakhs. This would mean that the assessee was liable to make pre-deposit under Section 35F of the Central Excise Act. It further pointed out that the order passed on 23.1.2009 was on the ground that there was no duty quantified. However, after the dismissal of the Writ Petition and the duty quantified, the earlier order passed on 23.1.2009 would have no force. That apart, the stay order did ....