2008 (10) TMI 215

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....the petitioner preferred an appeal to the Commissioner of Central Excise (Appeals) in Appeal No. 337 of 2003. The appellate authority dismissed the appeal thereby confirming the order of adjudicating authority. Challenging the same, the petitioner has preferred an appeal to the Customs, Excise and Service Tax Appellate Tribunal. Along with the appeal he filed a petition under Section 35(F) of the Central Excise Act for stay. However, the petitioner did not deposit the entire amount with the adjudicating authority as required under Section 35(F) of the Act. He prayed for dispensing with the said payment. The appellate tribunal by order dated 22-9-2005 in No. E/PD/537/2003 in E/1107/2003 directed the petitioner herein to deposit 50% of the du....

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....e the tribunal seeking to dispense with the pre-deposit, the petitioner has not made out any case to establish undue hardship to him. What he has stated in the petition is as follows: "3. The balance of convenience is entirely in favour of the applicant. The applicants have an apprehension that the department may resort to coercive methods to realize the dispute amounts of duty and penalty. 4. Grave hardship and irreparable loss will be cause to the applicants if duty of excise and penalty amounts are illegally recovered from them. It would in the interest of justice to direct the respondents not to persist in recovering the duty and penalty from the applicants." Except the above vague statement that grave hardship and irreparable ....

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....urden to have 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 compliance with it. 14. The word "undue" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 15. The other aspect relates to imposition of condition to safeguard the interest of revenue. Therefore, the Tribunal while dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate condition as required to safeguard the interest of revenue." 6. As per the law laid down by the Honourable Supreme Court it is incumbent on the part o....