A.K.Yog, Dilip Gupta, JJ. - (1.) Present writ petition, under Article 226 of the Constitution of India is preferred by the petitioner against the impugned order dated August 29, 2005 passed by the Commissioner (Appeals), Customs and Central Excise, Meerut-II (NOIDA)/respondent no. 4 on the application moved by the petitioner for dispensing with the deposit of duty and the penalty demanded.
(2.) The petitioner M/s. Moriroku UT India Pvt. Ltd. B-6-11, Sector-81, Phase-II, NOIDA Distt. Gautam Budh Nagar-UP filed an appeal along with stay application, being aggrieved by the Order-in-Original No. 12/ST/DC/NOIDA/2005 dated 28.1.2005 passed by the Deputy Commissioner, Central Excise, Div-IV, NOIDA/respondent no. 6 as provided under Section 35 of Central Excise Act, 1944 (hereinafter referred to as the 'Act'). Section 35 F of the Act for convenience is reproduced below: "Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject' to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. "
(3.) The Appellate Authority in the impugned order observed as follows: "This is an arguable case and there are various judgments of higher forums from both the sides on this issue. Though they have prayed to dispense with pre-deposit of Service Tax, interest and penalties on the ground of financial hardship but no documentary proof has been submitted in support of the same". However, in the interest of justice the Appellants are directed to deposit the amount equivalent to demand of Service Tax, Rs. 15, 13,017/- only. 1 stay the operation of the impugned order in original for rest of the amount. The said amount of Rs. 15,13,017/-should be deposited within three, weeks from the date of receipt of this order and proof regarding the deposit of the same duly verified by the jurisdictional Officer must be produced to this office. Failing which the appeal may be dismissed without any further reference. ";