- (1.) This Appeal has been filed by M/s. Shri Ram Garments & Accessories under Section 35(G) of the Central Excise Act, 1944 against the order dated 1st April, 2009 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as the "Appellate Tribunal") on the stay application filed by the appellant along with the Central Excise Appeal which Appeal had been filed against the duty and penalty imposed by the Commissioner of Central Excise, Meerut.
(2.) The appellant is a Private Limited Company having a manufacturing unit for manufacture of Slide Fasteners. The Commissioner of Central Excise by the order dated 31st October, 2008 confirmed the demand of duty and penalty. An appeal was filed along with an application for stay of the said order and for waiver of the pre-deposit the amount. The Appellate Tribunal after hearing learned counsel for the parties decided the application by directing the appellant to make a pre-deposit of Rs. 30 lakhs and if such direction was carried out, the realisation of the balance demand was to remain stayed. The relevant observations are :- "Thus, both sides are firm on their stand. While Revenue questions expansion of the factory on the ground of bogus purchase of machinery noticing that sellers were not-existent and even plea of purchase of parts for fabrication and assembly not believable, Appellant's plea is that its expansion is proved from IIT Report and installed capacity expanded. These two pleadings need rigorous scrutiny by an elaborate hearing. It was also observed in adjudication order in para 25 that the IIT Professor Sri Mehta failed to appear for cross examination. He informed Revenue Authority to dispose the matter on the basis of technical opinion. All these aspect calls for testing thoroughly. Therefore, prima facie , the case does not call for full waiver of pre-deposit during pendency of appeal to protect interest of revenue when no materials were adduced to prove that calling for pre-deposit shall cause undue hardship to the appellant. Also there are no materials to suggest financial hardship that may be caused by an order directing pre-deposit. Therefore, following the ratio laid down by Apex Court in the case of Dunlop India Ltd., 1985 19 ELT 22 and Benera Valve, 2006 204 ELT 513, it is directed that the appellant shall make pre- deposit of Rs. 30.00/- (thirty lakhs) within four weeks from the date of pronouncement of this order and make compliance on 9-7-2009. If such direction is carried out, realization of balance demand shall be stayed till disposal of appeal."
(3.) Sri M.P. Devnath, learned counsel appearing for the appellant submitted that not only has the appellant a strong prima facie case but pre-deposit of such a huge amount will cause undue hardship to the appellant Company which in fact does not have a sound financial position. He, therefore, submits that in view of the decision of this Court in Writ Petition No. 1707 of 2005 (SPL Siddhartha Ltd., NOIDA . Union of India & Ors .) decided on 21st December, 2005 and the decision of this Court in Swastik Fragrances . Commissioner (Appeals) of Cus. & C. Ex., NOIDA reported in 2004 (169) E.L.T. 257 (All.) the interest of the Revenue can be protected by directing the appellant to furnish security of the amount.;