Arun Mishra, C.J. - (1.) THE Petitioners by way of present petition filed under Articles 226 and 227 of the Constitution of India, seek to challenge the order dated 21.1.2998 passed by Customs, Excise and Service Tax Appellate Tribunal (CESTAT) - Respondent No. 4 (in Appeal No. E/2641/2008 and E/S2645/2008), whereby the Respondent No. 4 (CESTAT) had directed the Petitioner No. 1 to make pre -deposit of 10 lacs on or before 21.2.2009 and had dismissed the stay application as well as the appeal preferred by the Petitioner No. 1.
(2.) THE short facts giving rise to the present petition are that the Petitioner No. 1 is a Company incorporated under the Companies Act 1956, engaged in the business of building body chassis supplied by the chassis manufacturers and the parties other than the chassis manufacturers and that the Petitioner No. 2 is the share holder and Director of the Petitioner No. 1 Company. The Respondent No. 2 Additional Commissioner, Central Excise, had issued a show cause notice dated 1.2.2007 to the Petitioner No. 1 raising a demand of Rs. 24,72,307/ - towards the excise duty recoverable from Petitioner No. 1 under Rule 4 of the Central Excise Rules, 2002, read with Section 11A(1) of Central Excise Act along with interest under Section 11AB of the said Act. The Petitioners had replied to the show cause notice, however, the Respondent No. 2 vide its order dated 19.3.2008, confirmed the said demand raised in the show cause notice and also imposed penalty of Rs. 2 lacs. Being aggrieved by the order of the Respondent No. 2, the Petitioner No. 1 preferred an appeal before the Respondent No. 3 along with an application for staying the said order. The Respondent No. 3 vide the order dated 27.5.2008 stipulated the predeposit of Rs. 10 lacs to be made on or before 31.8.2008 for the admission of the appeal. It appears that since the Petitioner No. 1 could not make the said pre deposit as directed, the Respondent No. 3 dismissed the said appeal vide order dated 22.9.2008. Being aggrieved by the said order, the Petitioner No. 1 preferred the appeal before the Respondent No. 4(CESTAT) under Section 35 of the Central Excise Act along with the stay application under Section 35F of the said Act. The Respondent No. 4 (CESTAT), vide its order dated 21.1.2009 directed the Petitioner No. 1 to deposit a sum of Rs. 10 lacs on or before the 26th of February 2009 by way of pre -deposit before the Respondent No. 3 the Commissioner (Appeals) and further directed the Respondent No. 3 to hear the Petitioner No. 1 on merits of the case. The Respondent No. 4 by the said order also dismissed the stay application as well as the appeal preferred by the Petitioner No. 1. The Petitioners being aggrieved by the said order of Respondent No. 4 have invoked the writ jurisdiction of this Court by filing the present petition. It has been submitted by learned Advocate Mr. Rajendra Salecha for the Petitioners that the Petitioner No. 1 Company is facing great financial crises and is not in a position to pay the said amount by way of pre deposit. He also submitted that the Respondent No. 4 could have waived the amount of pre deposit considering the acute financial hardship being faced by the Petitioner No. 1 Company. According to Mr. Salecha there being number of legal issues involved in the appeal before the Respondent No. 3, the Respondent No. 4 should have not insisted the Petitioners to deposit the said amount of pre deposit.
(3.) IN the instant case, it is not disputed that the appeal of the Petitioner No. 1 before the Respondent No. 3 was dismissed, on the Petitioner No. 1 having failed to comply with the mandatory requirement of the pre deposit. It is also not disputed that the Petitioner No. 1 was directed to make payment of Rs. 10 lacs towards the pre -deposit as against the demand of Rs. 24,72,307/ - raised by the Respondent No. 2. It is pertinent to note that though the Respondent No. 4 had directed the Petitioner No. 1 to make pre deposit of Rs. 10 lacs, within four weeks from the date of the order dated 21.1.2009, and to submit the compliance report to the Commissioner (Appeals) on 26.2.2009, the said compliance does not appear to have been made by the Petitioner No. 1 till this date. This Court has also not granted any interim relief staying the operation of the impugned order passed by the Respondent No. 4 pending this petition. Further, though it has been argued by learned Advocate Mr. Salecha that the Petitioner No. 1 Company is facing great financial hardship, there is no material placed on record in support of his said submission, on the contrary he has admitted that the Petitioner No. 1 Company is running the business and has not been declared sick unit. There being no exceptional case of hardship meted out by the learned Counsel for the Petitioners and there being no illegality or infirmity in the discretionary order passed by the Respondent No. 4 (CESTAT), this Court finds no merits in the present petition. In that view of the matter, the petition deserves to be dismissed and is accordingly dismissed.;