TaxTMI 
TaxTMI 
2014 (12) TMI 1079
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....e appellant could justifiably be subjected to any pre-deposit, for having its appeal heard on merits? (B) Whether the impugned order of the Hon'ble Tribunal is not liable to be set aside additionally for the reason that it is totally bereft of any findings, even, prima facie, on the merits of the case?" 2. By an order-in-original dated 27.03.2014 the Commissioner of Customs (hereinafter referred to as "the Adjudicating Authority") held that the coal imported by the appellant was "bituminous coal" classifiable under SHN 2701 1200 of the Customs Tariff Act, 1975 and not "Steam Coal" as claimed by them and consequently attracted duty under serial No.124 of Notification No.12 /2012- Cus and was not entitled to the benefit of serial No.123 thereof. The Adjudicating Authority accordingly, rejected the classification of the coal imported by the appellant under CTH 2701 1920 and had ordered reclassification of the same under CTH 2701 1200 of the Customs Tariff Act and denied the appellant the benefit of notification No.12 /2012 as amended under SI. No.123 in respect of coal imported under the cover of bills of e....
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....examination of the said submissions on the merits of the case is mandatory before directing any pre-deposit. In support of such submission, reliance was placed upon the decision of the Supreme Court in the case of Benara Valves Ltd. V. Commissioner of Central Excise, (2006) 13 SCC 347. Referring to the impugned order, it was pointed out that though the Tribunal has recorded that the appellant had placed reliance on the above decision in the case of Tamil Nadu Newsprint & Papers Ltd., it has not dealt with the same nor has it recorded as to why despite the decision being squarely applicable to the facts of the present case, payment of pre-deposit was necessitated. Thus, the impugned order does not conform to the requirements laid down in the above decision inasmuch as there is no discussion whatsoever, on the merits of the case, even prima facie. Reliance was also placed upon the decision of the Kerala High Court in the case of Binani Zinc Ltd. v. Asstt. Collector of Central Excise, Cochin, 1995 (77) E.L.T. 514 (Ker.) wherein the appellate authority had followed an earlier decision of the Madras Bench of the Tribunal in the matter of levy of duty. The court observed that the contrar....
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....o be put to some condition. Accordingly, the Tribunal has directed the appellant herein to deposit Rs. 20,00,000 /- as a condition for hearing and disposing the appeal on merits. Thus, while directing pre-deposit of Rs. 20,00,000/- the Tribunal has duly assigned reasons for doing so. Under the circumstances, the contention that the impugned order is a non-speaking one stands repelled. 5. A perusal of the impugned order further reveals that the Tribunal has recorded that on behalf of one of the assessees, reliance had been placed upon the decision of the Tribunal in the case of Tamil Nadu Newsprint & Papers Ltd. (supra) wherein identical issue was decided by the Tribunal in the case of the said assessee holding that without a chemical test, the department has no basis to classify the goods under Heading No.2701.12 and charge the same to higher rate. In the opinion of this court, while it is true that in the reasoning part of the order, the Tribunal has not referred to the above decision, the fact that the same finds reference in the body of the order along with the fact that the Tribunal has directed payment of only a small fraction of the amount that the appellant is liable to pay....
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....plication twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interests of the Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35-F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka that under Indian conditions expression "undue hardship" is normally related to economic hardship. " Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be "undue" it must be shown that the particular burden to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compli....