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M/S SHIVAM UDYOG versus THE COMMISSIONER, CENTRAL EXCISE & ANOTHER

High Court of Judicature at Allahabad

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M/s Shivam Udyog v. The Commissioner, Central Excise & Another - WRIT TAX No. 825 of 2005 [2005] RD-AH 1320 (12 May 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.37

Civil Misc. Writ Petition No.825 of 2005

M/s Shivam Udyog  v. Commissioner, Central Excise, Allahabad and another.

Hon'ble R.K.Agrawal, J.

Hon'ble Rajes Kumar, J.

By means of the present writ petition the petitioner has challenged the order dated 14.3.2005 passed by the Central Excise and Service Tax Appellate Tribunal, Delhi- respondent no.2 in so far as it imposes the condition of deposit of 25% of the duty amount.

We have heard Sri Yatindra, learned counsel for the petitioner, and Sri K.C.Sinha, the learned Assistant Solicitor General for the respondents.

The learned counsel for the petitioner submitted that the petitioner is engaged in the manufacture of H.D.P.E. containers falling under sub-heading No. 3923.90 of the First Schedule of the central Excise Tariff Act, 1985 and the containers seized by the officers the respondent assessee were not excisable as they were in the intermediate stage of manufacture and the handles and caps have not been sold. He further submitted that the Tribunal has not taken into consideration the principle laid by this Court in Civil Misc. Writ Petition No.1219 of 2003, I.T.C. Ltd. v. Commissioner (Appeals), Customs & Central Excise and others, decided on 23.10.2003, wherein this Court has held as under:-

"In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering the application for stay/waiver of a pre-deposit, as required under the law, the Court must apply its mind as to whether the appellant has a strong prima facie case on merit. In case it is covered by the judgment of a Court/Tribunal binding upon the Appellate Authority, it should apply its mind as to whether in view of the said judgment, the appellant is likely to succeed on merit. If an appellant having strong prima facie case, is asked to deposit the amount of assessment so made or penalty so levied, it would cause undue hardship to him, though there may be no financial restrain on the appellant running in a good financial condition. The arguments that appellant is in a position to deposit or if he succeeds in appeal, he will be entitled to get the refund, are not the considerations for deciding the application. The order of the Appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with the law. The expression "undue hardship" has a wider connotation as it takes within its ambit the case where the assessee is asked to deposit the amount even if he is likely to exonerate from the total liability on disposal of his appeal. Dispensation of deposit should also be allowed where two view are possible. While considering the application for interim relief, the Court must examine all pros and cons involved in the case and further examine that in case recovery is not stayed, the right of appeal conferred by the legislature and refusal to exercise the discretionary power by the authority to stay/waive the pre-deposit condition, would be reduced to nugatory/illusory. Undoubtedly, the interest of the Revenue cannot be jeopardized but that  does not mean  that in order to protect the  interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any good could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer.

In view of the above, we are of the considered opinion that as the Appellate Authority has not addressed to itself any of the issues involved in the appeal rather has gone to the issue of financial hardship which was unwarranted and uncalled for in the fact situation of this case. The order impugned cannot be sustained in the eyes of law and we have no option but to allow this petition and set aside the order impugned."

From a perusal of the order impugned in the writ petition, we find that the Tribunal has not considered the principle laid down by this Court in the aforesaid case and, therefore, the said order cannot be sustained and is hereby set aside. The Tribunal is directed to decide the appeal after giving an opportunity of hearing to the petitioner in the light of the observations made above. The writ petition succeeds and is allowed. The Tribunal shall decide the appeal expeditiously.

12.5.05

MZ.


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