TaxTMI 
TaxTMI 
TaxTMI 
2014 (2) TMI 357
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....mand an amount of Rs. 15,37,57,177/- towards Central Excise duty on asbestos cement sheet cleared by them during the year 2003-04 and 2004-05 on the ground that they have wrongly availed exemption from Central Excise duty up to 28 February, 2006 under Notification No. 6/2002, dated 1 March 2002, by accounting bogus/excess fly ash receipts. The assessee submitted an explanation to the said notice. The Commissioner of Central Excise examined the records, took statements from the officers of the assessee and ultimately, passed an order dated 6 May 2009 confirming the demand. The Commissioner of Central Excise directed the appellant to pay a sum of Rs. 13,23,85,374/- towards Central Excise Duty for the period in question along with interest and penalty of equal amount under Section 11AC of Central Excise Act. 3. The order in Sl. No. 4/2009, dated 6 May 2009 on the file of the Commissioner, Central Excise, was challenged before the CESTAT. 4. The assessee, along with the statutory appeal, filed an application for waiver of pre-deposit and to stay the operation of the order pending disposal of the appeal. 5. The interlocutory application came up for consideration before....
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....T has given detailed reasons in support of the finding that the assessee has no prima facie case and the balance of convenience is also not in their favour. There was a clear finding that the assessee miserably failed to prove undue hardship. In spite of availability of such relevant materials, the learned Single Judge was pleased to set aside the discretionary order without assigning any reason. Therefore, the order is liable to be set aside. 10. The learned senior counsel for the assessee contended that the assessee has established a prima facie case before the learned Single Judge, as could be seen from the order and as such, no interference is necessary in the present appeal. According to the learned senior counsel, the assessee has got a very good case on merits and this aspect was not considered by the third member. It was further contended that there has been no shortage of fly ash and as such, the allegation of clandestine removal has no basis. This vital point was not considered by the third member. The writ Court, having appraised of such basic facts arrived at a conclusion that the assessee has established a prima facie case and as such, they should be heard on mer....
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....arding pre-deposit, necessarily, the essential conditions should be satisfied. The Appellate Authority is expected to consider the relevant materials for the purpose of dispensation of pre-deposit. The Tribunal must consider the prima facie case, balance of convenience and undue hardship. Undue hardship cannot be decided without making an attempt to consider the prima facie case. The Tribunal is expected to safeguard the interest of the Revenue also. 16. It is true that the Vice-President arrived at a finding that the assessee has prima facie established the use of fly ash of the percentage prescribed in the notification and therefore, would be entitled to the benefits. However, the second member, and on reference, the third member, disagreed with the said finding. The third member passed a detailed order in support of his conclusion that the balance of convenience was not in favour of the assessee. 17. The third member found that the assessee has created bogus receipts of fly ash from third parties to make out a case for availing duty exemption and therefore, they miserably failed to prove the prima facie case. According to the third member, the assessee railed to prov....
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....xercised in accordance with the settled legal principles. The materials available on record should suggest a prima facie case in favour of the appellant besides undue hardship. When a finding is recorded with respect to prima facie case and undue hardship by CESTAT, in exercise of the power conferred under the proviso to Section 35F or the Act, such finding should be given due weight unless there are materials to show that the finding was perverse and no reasonable person would have arrived to such a finding on the basis of available materials. Each case has to be decided on its own peculiar facts. The precedent : 23. The Supreme Court in Benara Valves Ltd. v. Commissioner of Central Excise, (2006) 13 SCC 347 = 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (S.C.), noticed the unfortunate trend of casually disposing of the stay application without analyzing the factual scenario involved in a particular case. After extracting Section 35F of the Central Excise Act, 1944, the Supreme Court indicated the conditions to be fulfilled by the assessee to invoke the proviso and to avoid pre-deposit. The Supreme Court, held :- "11. Two significant expressions used in the pro....