M.C.Agarwal, J. - (1.) This petition under Article 226 of the Constitution of India is directed against an order dated 31-3-1999 passed by the Commissioner, Customs and Central Excise (Appeals), Ghaziabad whereby in exercise of powers conferred by the proviso to Section 35-F of the Central Excise Act, 1944, he has partially waived the condition of pre-deposit.
(2.) I have heard Shri A.P. Mathur, learned Counsel for the petitioner and Shri Surya Prakash, learned Counsel for the respondent.
(3.) Excise duty of Rs. 2,25,857 and a penalty of Rs. 50,000 has been levied on the petitioner by the Asstt. Commissioner, Central Excise who has found that the petitioner has wrongly availed Modvat credit. The petitioner has preferred an appeal before the Commissioner which is pending and in which the impugned order has been passed. Section 35-F requires the adjudicated dues to be deposited before the appeal can be entertained but the proviso confers power on the appellate authority to waive the condition of pre-deposit on such condition as it thinks fit if the condition of pre-deposit is likely to cause undue hardship to the appellant. It is in exercise of that power that the learned Commissioner has partially waived the condition of pre-deposit and directed that only a sum of Rs. 1 lac towards the duty and Rs. 10,000 towards the penalty be deposited within 15 days.;