TaxTMI 
TaxTMI 
2014 (4) TMI 1090
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.... duty for the only 3,349 MT. 4. According to the petitioner the petitioner did not avail any credit of the Excise duty on 4,500 metric tons used in civil structures. In November, 2008, the petitioner received a show cause notice dated 21st of November, 2008 issued by the respondent number 2 alleging that the petitioner had contravened the provisions of Rules 4 and 6 of the Cenvat Credit Rules, 2004 as amended, by availing credit of duty paid on angles, channels, etc., since they were neither defined as capital goods under rule nor as inputs under rule of the Cenvat Credit Rules, 2004 it was further alleged that the petitioner had violated the provisions of the Central Excise Rules, 2002 by not showing such availment in its monthly returns during the period from April, 2006 till July, 2008. 5. By a letter dated 10th January, 2009 the petitioner replied show cause notice. Thereafter a personal hearing was granted petitioner by the respondent No. 2 on 1st December, 2009. 6. By an Order-in-Original dated December 31st, 2009 the respondent No. 2 rejected the petitioner's contentions and confirmed the allegations made in the show cause notice including the purported dem....
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....o that assessee, as held by this Court in Bongaigaon Refinery & Petrochemicals Ltd. v. Collector of Central Excise reported in 1994 (69) E.L.T. 193 (Cal.). 13. The judgments of this Court in Ruby Rubber Industries (supra) and Bongaigaon Refinery & Petrochem Ltd. (supra) were followed by this Bench in M/s. Tijiya Steel Pvt. Ltd. & Anr. v. Union of India & Ors. reported in (2007) 2 Cal LT 358 (HC). 14. In M/s. Tijiya Steel Pvt. Ltd. (supra) this Court has observed that in considering the question of waiver of pre-deposit, two factors are of paramount importance, the financial capacity of the appellant and the prima facie case. The financial capacity of the appellant has to be considered in all cases, irrespective of the prima facie merits of the case. Even where an appellant has the financial capacity to deposit the disputed tax and/or penalty, pre-deposit might have to be waived if the appellant makes out a strong prima facie case. 15. Where there is a very good prima facie case, pre-deposit would have to be waived altogether. Where the appellant has an arguable case, pre-deposit might be waived on such conditions as would protect the interest of Revenue. 16.&emsp....
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....dispensed with. 20. In J.N. Chemical (Pvt.) Ltd. (supra) the Division Bench found that the appellant was covered by another decision of the Tribunal. The Division Bench, therefore, examined the findings with regard to prima facie case and observed that it was impossible for the Tribunal to arrive at the conclusion that it could not be said that the appellant had a good prima facie case. 21. In I.T.C. Ltd. v. Commissioner (Appeals), Customs & Central Excise, reported in 2005 (184) E.L.T. 347 (All.) a Division Bench of Allahabad High Court held that while the Court should not grant stay of recovery for the asking, at the same time, while considering an application for waiver of pre-deposit, the Court must apply its mind as to whether the appellant has a strong prima facie case on merits. If an appellant having a strong prima facie case on merits is asked to deposit the amount assessed or penalty imposed, it would cause undue hardship to the appellant. 22. In Indu Nissan Oxo Chemicals Industries Limited v. Union of India and Ors. reported in 2007 (13) SCC 487 = 2008 (221) E.L.T. 7 (S.C.), the Supreme Court held :- "12. It is true that on merely establishing a ....
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....rder which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake citizens' faith in the impartiality of public admission, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases (supra) without analysing factual scenario involved in a particular case." 24. In considering the question of undue hardship and the waiver of pre-deposit, 2 factors are of paramount importance, the financial ability of the sustainability of the disputed claim against the appellant. The financial capacity of the appellant has to be considered in all cases, irrespective of the prima facie merits of the case. Even where an appellant has the financial capacity to deposit the disputed tax and/or penalty pre-deposit may have to be waived if the appellant makes out a strong prima facie case. 25. Where there is a very good prima facie case or/a gilt edged case pre-deposit would have to be waived altogether. If the appellant has an arguable case ....
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....t may not involve any question of law far less a substantial question of law and hence may not be appealable. An order directing deposit of disputed duty or penalty either in full or in part is not ordinarily appealable. It cannot, therefore, be said that the petitioner has an adequate efficacious alternative remedy. 33. Article 226 of the Constitution of India does not impose any limitation on the power of the High Court to issue writs, even when there is an alternative remedy. Where there is an efficacious alternative remedy this Court refrains from exercising its extraordinary jurisdiction. This Court would not reject an application under Article 226 of the Constitution of India where the remedy, if any, of appeal is uncertain as in the case of the appeals under Section 35G of the Central Excise Act, 1944 which depend on subjective satisfaction of the Division Bench of the High Court, of existence of a substantial question of law. 34. In any case, there are at least 3 exceptions to the rule of alternative remedy. A writ application might be entertained where the order is in violation of principles of natural justice, where the order has been passed under a law which ....