2008 (7) TMI 368

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....nd the learned Advocate for the petitioner has concentrated and made submissions only in regard to the said order made by CESTAT. CESTAT had vide order dated 17-12-2007, after hearing the parties and recording concession of the learned Senior Advocate appearing for the petitioner, as to admitted liability to the tune of Rs. 90 lacs, reduced the total amount payable as pre-deposit to the tune of Rs. 2 crores in exercise of its discretionary powers under Section 35-F of the Central Excises and Salt Act, 1944 (the Act). The petitioner moved a modification application requesting the Tribunal to modify its order dated 17-12-2007 on the ground that the petitioner was entitled to total exemption by virtue of notification on which reliance was plac....

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....ich in any case is not disputed by the appellants at this stage. Accordingly, we dismiss the modification application and in the interest of justice, extend the period by another four weeks. The matter to come up for ascertaining compliance on 9th June, 2008." 3. Learned Advocate for the petitioner has vehemently assailed the impugned order dated 6-5-2008 contending that the Tribunal has erred in not considering the merits of the claim of the petitioner being governed by the aforesaid Notification. It is further submitted that once the petitioner was not liable to pay duty by virtue of entry at Sr. No. 253 of the said Notification dated 1-3-2000 any order of pre-deposit in exercise of powers under Section 35-F of the Act would be bad in la....

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....paid by the petitioner till the point of time the modification application was heard by the Tribunal. The Tribunal has further noted that in the interest of justice the Tribunal gone through the said Notification and recorded a finding that the reasons which have weighed with the adjudicating authority for denying the benefit under the Notification prima facie do not warrant interference. The Tribunal has further noted that the detailed submissions on the said issue can be advanced by the petitioner at the time of final disposal of the appeals. Holding that there was no justifiable reason to modify the earlier order in light of the findings recorded by Commissioner regarding the Notification not being applicable in case of the petitioner th....

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.... citizen's faith in the impartiality of the proceedings before the Tribunal merely because the Tribunal has confirmed its earlier order of granting partial stay of demand. Undue hardship is a matter within the special knowledge of an applicant and has to be established by the applicant. A mere assertion about undue hardship would not be sufficient as held by the Apex Court. Once the subordinate authorities had dealt with the Notification and recorded a finding about non-applicability of the Notification to the facts of the case of the petitioner, if the Tribunal agrees with such findings and refuses to intervene, it is not possible to accept the contention of the petitioner that this would result in undue hardship. Apex Court has, after ref....