TaxTMI 
TaxTMI 
TaxTMI 
2015 (10) TMI 727
X X X X Extracts X X X X
X X X X Extracts X X X X
....ier order dated 10-7-2013 dismissing the appeal upon failure of the appellant to comply the interim order 7-9-2012 granting waiver of pre-deposit under Section 35F of the Central Excise Act (hereinafter called 'the Act') to the extent of 50% only of the Excise duty assessed at Rs. 1,64,56,452/-. 3. Learned Counsel for the appellant submits that aggrieved by the classification of Tobacco Dust/Refuse mixed with lime combined with water packed in pouches and the consequent levy of Excise duty, it had preferred Appeal No. 565 of 2012. The aforesaid demand dated 27-12-2011 of Excise duty was based on this erroneous classification. The latter was challenged in Appeal No. 914 of 2012. On 29-8-2012, Appeal No. 565 of 2012 was directed to be h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the former appeal. It was a relevant consideration to be taken into account while deciding appropriate amount of waiver of pre-deposit. It was next submitted that the appellant shall be put to undue hardship as he is not in a position at all to deposit the amount in question. Reliance has been placed on a Division Bench decision of the Madras High Court in C.M.A. No. 907 of 2013 dated 3-4-2013. 6. It was next submitted that amendment had been made in Section 35F of the Act with effect from 6-8-2014 and he was ready to deposit 7½ % of the duty as assessed by the authorities. The appeal may be restored subject to that condition and directed to be disposed on merits. Reliance has been placed on an order dated 30-10-2014 by a Divis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of mistake which has also been rejected on 24-1-2014. The orders of Gujarat High Court and Madras High Court sought to be relied upon have no application. The appellant in the aforesaid manner has successfully evaded not only payment of duty till now but also even the pre-deposit to the extent of waiver granted. The law shall now take its course for recovery of the entire duty assessed. It was lastly submitted referring to an order in Tax Case No. 17 of 2013 (M/s. Crest Steel & Power Private Ltd. v. Commissioner, Customs and Central Excise) that if the appellant complies the order dated 7-9-2012 along with 9% interest, the appeal may be directed to be heard on merits and disposed in accordance with law. 8. We have considered the respe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ated 7-9-2012. The Act does not provide for any review jurisdiction in the Tribunal. Nonetheless the Tribunal did consider the application. Notwithstanding the fact that no one appeared for the appellant to press the application, the Tribunal suo motu on 30-1-2013 extended the time for pre-deposit by another eight weeks. We have gone through the application for review/modification. Suffice it to observe that it does not make out any case for undue hardship by pleading of facts in support of the same. A bald pleading has been made that there can be no hard and fast rule and the appellate authority was required to consider balance of convenience, financial hardship, irreparable injury while considering prayer for pre-deposit. It then states t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion also. Quite apart from the fact that the Tribunal which is the creation of a Statute has no such inherent powers, the application again baldly states that the appellants financial position was too weak to comply the stay order. Nothing has been urged with regard to the nature of undue hardship except reiterating that both the appeals should be heard together. Nonetheless, the Tribunal on 24-1-2014 considered the application for rectification and rightly rejected the same correctly opining that the assessment of duty was the subject matter of Appeal 914 of 2012 alone. 15. The order dated 7-9-2012 was an interim order discretionary in nature. We find no reason to interfere with the discretionary order which does not appear to be arb....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se, we are not persuaded to give a retrospective effect to a legislation expressly made prospective in nature and that too while considering a limited issue against an interim order. The readiness to deposit at 7½ % of duty assessed appears incongruous to the earlier stand of the appellant that come what may it was not in a position to deposit anything. It certainly leaves a doubt in our minds. 18. In the case of M/s. Crest Steel & Power Private Ltd. (supra) the facts were somewhat identical as the order for pre-deposit waiver to the extent granted was also not complied with. A similar argument with regard to undue hardship was made. Reference was made to 2006 (13) SCC 347 = 2006 (204) E.L.T. 513 (S.C.) = 2008 (12) S.T.R. 104 (....