- (1.) THIS appeal has been preferred by the assessee under Section 35G of the Central Excise Act, 1944 (in short "the Act") against the stay order dated 03.05.2012 (Annexure P -5) passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "the Tribunal"), claiming the following substantial questions of law: - (i) Whether the CESTAT is justified in passing impugned order by ordering pre -deposit to the extent of 75% of the duty demand whereas on the same facts, it had passed another Stay order dated 18.01.2012 ordering pre -deposit of approximate 10% of the duty demand? (ii) Whether CESTAT can pass inconsistence orders for pre -deposit under Section 35F of the Central Excise Act, 1944 for the similar cases? (iii) Whether the appellant has a prima facie case when the export documents were resumed by the Preventive staff during raid on the premises of the appellant? (iv) Whether the appellant has a prima facie case when the adjudicating authority passed order beyond the Show Cause Notice as the Show Cause Notice did not contain any allegation or discrepancy in the export documents? (v) Whether the Order in Original dated 02.05.2011 is violative of principles of natural justice because the Adjudicating Authority has passed the Order in Original exparte without supplying the relied upon documents and without waiting for reply of the appellant? (vi) Whether directions for Pre -deposit of 75% of the duty demand causes undue hardship to the appellant and is contrary to the provisions of Section 35F of the Central Excise Act, especially when appellant is suffering from financial crunch? (vii) Whether great and manifest injustice has been done to the appellant by directing it to make pre -deposit under the impugned Stay Order?
(2.) THE facts, in brief, necessary for adjudication of the present appeal as narrated therein are that the appellant is engaged in the manufacture of articles under headings 54, 61 and 62 of the First Schedule to the Central Excise Tariff Act, 1985. The appellant during the period from 13.3.2007 to 14.5.2007 cleared goods for export manufactured in their factory. A show cause notice dated 7.3.2008 (Annexure P -2) was issued by respondent No.2 proposing to demand duty of Rs. 1,26,05,140/ -. The adjudicating authority vide exparte order dated 2.5.2011 (Annexure P -3) confirmed the aforesaid demand of duty and also imposed penalty of an equal amount. Aggrieved by the order dated 2.5.2011 (Annexure P -3), the appellant filed an appeal before the Tribunal. Along with the appeal, the appellant also filed stay application dated 2.5.2011 (Annexure P -4). The Tribunal vide order dated 3.5.2012 (Annexure P -5) directed the appellant to pre -deposit 75% amount of duty. Still dissatisfied, the appellant filed CWP No. 12629 of 2012 in this Court. The said writ petition was dismissed as withdrawn by this Court vide order dated 15.1.2013. However, liberty was granted to the appellant to avail the legal remedy under Section 35G of the Act. Hence, the present appeal.
(3.) LEARNED counsel for the appellant submitted that the requirement of deposit of 75% amount of duty as directed by the Tribunal in the present case was unfair, unreasonable and excessive whereas on the earlier occasion against the liability of Rs. 70 lacs, only Rs. 10 lacs was required to be deposited. On the other hand, learned counsel for the revenue supported the order passed by the Tribunal.;