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M/S Hari Om Distillers v. Customs,Excise & Gold(Control) And Another - WRIT TAX No. 2315 of 2002 [2003] RD-AH 323 (18 September 2003)


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M/s Hari Om Distillers ....Petitioner


Customs, Excise & Gold (Control) Appellate Tribunal,

New Delhi and another ....Respondents

Hon'ble Rajes Kumar, J.

This writ petition is directed against the order of Tribunal dated 13.06.2002 passed on the application under Section 35-F of the Central Excise Act directing the petitioner to deposit Rs. 1lac on or before 19.08.2002.

Brief facts of the case are that against the order of the Commissioner, Central Excise, Kanpur, the petitioner filed appeal before the Tribunal, which is pending. The Commissioner has demanded the duty to the extent of Rs.12,29,798/- and levied the penalty at Rs.12,29,798/-. The duty was demanded on the allegation that the petitioner was involved in removing the goods clandestinely. In the application under Section 35-F apart from various grounds taken for order of the Commissioner on merit, it has also been stated that the manufacturing was closed in March, 1997 and the business was closed  w.e.f. 01.02.1999. It was further submitted that a sum of Rs.4 lacs has already been deposited. Tribunal, however, on the fact and circumstances of the case that the petitioner had deposited a sum of Rs.4 lacs and in the appeal there are argueable points which requires scrutiny of the material and evidence has directed the petitioner to deposit a sum of Rs.1 lac. Being aggrieved by the direction of the Tribunal to deposit a sum of Rs.1 lac, the present writ petition has been filed.

Heard learned counsel for the parties.

Learned counsel for the petitioner contended that since the Tribunal has found that the point involved in the appeal is argueable and requires close scrutiny aof the material and evidence on record and in as much as the factory was closed in the year 1999 and the petitioner has already deposited a sum of Rs.4 lacs, further direction of Tribunal to deposit a sum of Rs.1 lac in unjustified and arbitrary.

While considering the application under Section 35-F, Tribunal has to see whether the petitioner has a strong prima facie case and financial condition for arriving to a conclusion about the undue hardship which is require to be considered while granting the waiver under Section 35-F of the Act. The perusal of the order of Tribunal shows that Tribunal has considered the entire facts and circumstances and has directed to deposit only a sum of Rs.1 lac as against the total demand of Rs.12,29,798/- and the equal amount of penalty for Rs.12,29,798/- In the circumstances, discretion exercised by the Tribunal can not be said to be arbitrary.  I do not find any force in the present writ petition. However, I direct that in case, if the petitioner deposits a sum of Rs.1 lac within a period of two months from today, the appeal of the petitioner may be entertained and be dispose of expeditiously preferably within a period of three weeks.

With the above observation, the writ petition is dismissed.




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