Harish Tandon, J. - (1.) THE order disposing of an application for waiver of the pre -deposit condition is assailed in this writ petition. The Tribunal had allowed the waiver and directed the petitioners to deposit a sum of Rs. 70,00,000/ - within the stipulated period with categorical observation that the default may result in the dismissal of the appeal [ : 2013 (298) E.L.T. 397 (Tri. -Kol.)]. While the writ petition was pending before this Court, the Tribunal took up an appeal and for non -compliance of the said order dismisses the same. The said order is also assailed by way of a supplementary affidavit.
(2.) ACCORDING to the petitioners, the Tribunal has proceeded on the wrong premise that the petitioners have a substantial worth of Rs. 7.50 crores and have invested a sum of Rs. 1 crore and odd in the fixed deposit by overlooking the fact that the said fixed deposits were kept as a security for obtaining the orders from the Railways and Railways have paramount charge over the said fixed deposits. The petitioners further say that the Tribunal did not take into consideration the balance sheets and the other documents which sufficiently suggest that the order for deposit of Rs. 70 lakhs would cause undue hardship and the entire commercial activities of the petitioners would come to a halt. This Court while entertaining the writ petition directed the petitioner to obtain a report from the valuer as well as Sub -registry Office as the petitioners disclosed to the Court that they have a land at Rajarhat, Kolkata worth more than a crore. The report annexed in the supplementary affidavit filed today shows that the land at Rajarhat will fetch more than Rs. 1.5 crore which according to the petitioner can be kept as a security for compliance of the directions passed by the Tribunal.
(3.) SECTION 35F of the Central Excise Act, 1944 requires the deposit of the duty demanded with the adjudicating authority by the person desirous of appealing against the decision or the order passed by the Authority. The proviso to the said Section bestowed power upon the Appellate Tribunal to dispense with such deposit subject to such conditions as may be deemed fit to impose so as to safeguard the interest of the Revenue. It further provides that while considering the issue relating to the dispensation of pre -deposit condition the Tribunal shall also take into account the undue hardship that may be caused to such person simultaneously with an issue relating to safeguard the interest of the Revenue. There cannot be straight jacket formula for the purpose of dispensation at a particular rate or an amount but depends upon the facts of each case. The Tribunal not only should consider the undue hardship that would be caused to the person who has filed an appeal but shall also bear in mind the interest of the Revenue to be protected. Neither the Act nor the rule provides a particular mode to safeguard the interest of the revenue.;