1994 (10) TMI 74

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....ated inter alia that by the order dated 23-9-1991 (Ext. P1) the petitioner was exempted from payment of duty under Rule 57F(2) of the Central Excise Rules, 1944 for removal of the inputs for further use in the manufacture of the final products. But, by order dated 1-2-1994 (Ext. P2) this exemption was withdrawn and the Aluminium Cathode waste and/or scrap arising out of input Aluminium Cathode used in the manufacture of final products were directed to be cleared on payment of duty. The petitioner challenged this order before the Appellate Authority. The Appellate Authority confirmed the said order. Thereafter, the petitioner filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal. The learned Tribunal directed the p....

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....ment of a substantial amount which the assessee is not in a position to deposit, would constitute undue hardship. It is not the interest of the revenue that should weigh with the Appellate Authority in dealing with the request for waiving the deposit of the amount as pre-condition for filing the appeal." In V.I.P. Sea Foods case, the question involved was with regard to the application of proviso to Sec. 129E of the Customs Act which is in pari materia with the proviso to Sec. 35F of the Central Excises & Salt Act. In that case, the following dictum has been laid : "In exercising the discretion under the proviso to Section 129E, the Tribunal should consider, at least prima facie, the question involved in the appeal. Inter alia, the ex....

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....o Benches, the matter discloses an arguable case as against a frivolous one. In my view, therefore, there is a prima facie case for the petitioner and in exercising the discretion under the proviso to Sec. 35F of the Act the Appellate Tribunal should have considered this. 4.It is true that by the decision in O.P. No. 4165 of 1994, disposed of on 17-8-1994, this Court observed that the order passed by the Tribunal under the proviso to Sec. 35F of the Central Excises & Salt Act cannot be interfered with inasmuch as the Tribunal in exercise of its discretionary power is competent to pass such an order, unless it has acted perversely in ordering pre-deposit. There is no dispute about the proposition of law laid down in the aforesaid Original....