2014 (9) TMI 772

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....Briefly stated the facts of the case are that the assessee is engaged in the manufacture of chewing tobacco with the brand name of 'Subasita Sri Ganesh Ketaki Khara Masala' falling under tariff item No.24039910 of CETA, 1985. The assessee was working under self-removal procedure till the date 07.03.2010 and thereafter brought under the ambit of the Section 3A of the Act w.e.f. 08.03.2010 vide Notification No.10/2010-CEX (NT) dated 27.02.2010. They were manufacturing the pouches containing the chewing tobacco of retail sale price @ Rs. 8.50 per pouch. During the material period, the rate of duty per packing machine per month for chewing tobacco (other than filtered Khaini) pouches not containing line tube where the retail sale price is Rs. 8....

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....refore he prayed for full waiver of the pre-deposit. He submitted that Tribunals order directing pre-deposit of 25% in case of Jayanta Kr. Saha vs. UOI in W.P. 34473 (W)/2013, was set aside and the Tribunal was directed to hear the Appeal as the factory of the petitioner was closed since February, 2008 because of financial and other stringencies. He further submitted that in case where factory was closed for a long time, condition for pre-deposit was waived by the Tribunal in the case of Swadeshi Polytex Ltd. vs. CCE, Ghaziabad - 2004 (06) LCX 0096, Order of the Tribunal in the case of Kamini Ispat Ltd. vs. CCE & C(A), Hyderabad - 2007 (03) LCX 0395, Order of the Chennai Bench of the Tribunal in the case of Kalaimagal Alloy Steel Ltd. vs. ....

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.... case of Triveni Castings (P) Ltd. vs. CESTAT - 2011 (268) ELT 73(P & H), which has been upheld by the Hon'ble Apex Court reported as 2012 (278) ELT A21 (SC). Further, he has submitted that the Tribunal should consider the interest of Revenue in view of the principles laid down by the Hon'ble Supreme Court in the cases Viz. Benara Valves Ltd. vs. CCE - 2008 (12) S.T.R. 104(SC) and in Indu Nissan Oxo Chemicals Industries Ltd. vs. UOI - 2008 (221) E.L.T. 7 (SC). He specifically invited the attention of the Bench to para 16 of the judgement of the Hon'ble High Court of Andhra Pradesh in case of CCE, Guntur vs. Sri Chaitanya Education Committee 2011 (22) STR 135 (AP), wherein it is observed as: 16. In our considered opinion, the order of the....

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....prietor of the Applicant company is hardly aged about 25 years and has no capacity to pay the said amount. However, no documents of any kind was produced regarding inability of the Applicant to make such pre-deposit. 8. In these circumstances we agree with the Ld. A.R. that keeping in mind the ratio laid down by the Apex Court in the case of Benara Valves Ltd., Indu Nisan Oxo Chemicals Industries Ltd.(supra) laying down the guidelines for disposal of Application filed under Section 35F of Central Excise Act, 1944/129E of Customs Act, 1962 has observed that in dealing with such application twin requirement need to be examined, i.e. undue hardship relating to assessee and secondly safeguard the interest of Revenue. This principle has been ....