I.P.MUKERJI,J. - (1.) The Court : Before recounting the facts some discussion of the law is necessary. We are concerned here with section 35F of the Central Excise Act, 1944 before and after amendment. More particularly, we have to examine the provision with regard to the deposit of duty and penalty pending hearing of the appeal. Before amendment an appellant had to deposit the entire duty and penalty. The first proviso to Section 35F provided that in case of undue hardship the tribunal might dispense with the whole or part of the said deposit. What is undue hardship fell for consideration before the Supreme Court and the High Courts. It was held that existence of a strong prima facie case in his favour was a factor to be considered in assessing whether undue hardship would be caused to the appellant if compelled to make the deposit of the entire duty and penalty pending the appeal. Justice Indira Banerjee of our court in Jai Balaji Industries Ltd. / CESTAT, Kolkata, reported in 2015 [324] ELT 375 [Cal] very nicely summarised the law on the subject by discussing all the authorities. Her ladyship remarked in paragraph 24 "even where an appellant has the financial capacity to deposit the disputed tax and/or penalty pre-deposit may have to be waived if the appellant makes out a strong prima facie case". In the present case, the assessment order dated 20th December, 2010 is involved. The writ petitioner erected cooling towers. The sub-structure is imbedded in the ground and claimed by them to be immovable property and not exigible to excise duty. Other components for erecting the cooling towers are procured and affixed on this substructure. Undoubtedly, excise duty is payable on these movable items.
(2.) The excise department was of the view in the assessment orders in question that the cost of erecting the immovable sub-structure would be exigible to excise duty and that the petitioner had made short payment of this duty. In respect of this assessment year the appeal went to the tribunal, which by an order dated 23rd September, 2013 reduced the pre-deposit to 50%. There was no case of financial hardship before it. Therefore, it is to be assumed that the tribunal on consideration of the prima facie case of the writ petitioner which was the appellant before it had reduced the pre-deposit to 50%. In the present writ application preferred by the writ petitioner against this order this court by an interim order dated 26th November, 2013 directed the writ petitioner to deposit Rs.2.5 crore with its advocate on record with a further direction upon him to invest the same in a short term bank deposit. The Excise Act , 1944 was amended with effect from 6th August, 2014. Section 35F . After such amendment is as follows : " Section 35F . Deposit of certain percentage of duty demanded or penalty imposed before filing appeal. - The Tribunal or the Commissioner [Appeals], as the case may be, shall not entertain any appeal - [i] ... xxx ... [ii] against the decision or order referred to in clause [a] of sub-section [1] of section 35B , unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against."
(3.) Meanwhile, the second order of assessment for a subsequent year on the self-same issue was made by the respondent authorities on 30th March, 2012, the third order for another subsequent year was made on 20th January, 2014. Both these orders were taken to the tribunal. In relation to these matters, the tribunal by its order dated 28th October, 2015 and 8th December, 2015 directed 7.5% pre- deposit of duty. Mr. Chakraborty submits that the order dated 23rd September, 2013 passed by the tribunal in respect of the first assessment to be made compatible with the second and third orders for pre-deposit. ;