- (1.) The Court: In this writ petition the Petitioner has challenged the order dated May 10, 2010 passed by the Commissioner of Central Excise (Appeals), Kolkata-II directing the Petitioner herein that is the Appellant to deposit before the authorities a sum of Rs. 2,75,472/- along with interest as demanded in the order dated 31st December 2008 on the ground that the Commissioner did not consider the case of undue hardship faced by the Petitioner and was not given the opportunity to controvert the applicability of the amended Rule 6 of the Removal of Goods Rules during hearing.
(2.) So far the question of undue hardship is concerned perusing the stay petition, I find that the same was not at all pleaded. To make out a case in the stay application, one has to plead undue hardship. Since there was no such pleading, in my view, the Commissioner was justified to come to a conclusion that no case was made out by the Appellant to demonstrate that the pre-deposit would cause undue hardship. However, regarding the applicability of the amended Rule 6 of the Removal of Goods Rules, since it has been submitted by Mr. Sen that the Petitioner was not given an opportunity to argue, on its applicability at the time of hearing of the stay petition, considering the facts and circumstances of the case, the writ petition is disposed of by granting liberty to the Petitioner to file an application for review of the said order passed by the Commissioner within seven days from date. If such application is filed, the Commissioner shall dispose of the same by passing a reasoned order within a fortnight after giving an opportunity of hearing. As prayed for, the notice dated 21st September, 2010 regarding realisation of the dues, as evident from annexure P-8, shall remain stayed till reasoned order is passed and communicated on the application for review. If, however, no application for review is filed within the time as stipulated, the Respondent authorities in that event are at liberty to proceed with the notice dated 21st September 2010 in accordance with law.
(3.) Since the writ petition is disposed of at the stage of admission without calling upon the Respondents to file affidavits, allegations made are deemed to have been denied by them.;