- (1.) WHAT is under challenge in this petition filed under Article 226 of the Constitution of India is the order dated 30.1.2002 passed by the Commissioner (Appeals), Customs and Central Excise, Patna Respondent No. 2 in this petition whereby the request of the petitioner for waiver of the requirement of pre - deposit of the duty during the pendency of the appeal has been turned down. Section 35 -F of the Central Excise Act reads thus : - - "35 -F. Deposit, pending appeal, of duty demanded or penalty levied. - -Where in any appeal under the Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case the Commissioner (Appeals) or the Appellate Tribunal is of the opinion that the deposit of duty demanded or the penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such condition as he or it may deem fit to impose so as to safeguard the interest of revenue : Provided further that where an application is filed before the Commissioner Appeals for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing." As will thus be seen, the opening part of the section makes the deposit, with the adjudicating authority of the duty demanded or the penalty levied, as a condition precedent for maintaining an Appeal under Chapter VI -A of the Act. The first proviso to this section empowers the appellate authority to dispense with the said requirement of pre -deposit of the duty demanded or the penalty levied, if the appellate authority is of the opinion that the deposit of such amount would cause undue hardship to the appellant.
(2.) SINCE in paragraphs 18 and 19 of the application the petitioner had averred that the Commissioner did not consider the hardship question, in our order dated 28.2.2002 while directing the respondents to file a short counter affidavit, we had also ordered that the respondents would file a copy of the petitioners application filed under Section 35 -F (supra) claiming exemption from the aforesaid pre -deposit. Along with the counter affidavit the respondents have filed the copy of the petitioners application. A perusal of the petitioners application clearly suggests that the petitioner did not set -up as any ground, while applying under Section 35 -F for exemption from pre -deposit, that the requirement of pre -deposlt (if it was to be met) would cause undue hardship to the petitioner. Undue hardship can be caused to any person for a variety of reasons; one such reason could be that the person does not have the money. On what reasons, for what grounds and in what manner would the pre - deposit requirement cause undue hardship to the petitioner has not at all been explained or mentioned in the application of the petitioner. Actually, the application is totally silent with respect to any reason, factor or any ground of such undue hardship. If the proviso to Section 35 -F makes undue hardship as the only ground for exemption from pre -deposit requirement, it correspondingly becomes imperative for the petitioner -appellant to plead, establish and substantiate the grounds of undue hardship. Failure to do so automatically would result in the application being dismissed. Because, admittedly, the petitioner had not complied with the aforesaid requirement the Commissioner was justified in dismissing the application. We see no reason to interfere.
(3.) THE only relief that we can grant is the extension of time for pre - deposit. The Commissioner in the impugned order had granted 15 days time to the petitioner for pre -deposit. This 15 days time period expired on 15.2.2002. We extend the period of pre -deposit by three weeks from today. If the petitioner makes this pre -deposit in three weeks from today, the appeal would be heard on merit. If it falls to do so the Commissioner shall be at liberty to dismiss the appeal. On the pre -deposit being made, we direct the Commissioner to dispose of the appeal within four weeks from the date of the pre -deposit subject to this order being communicated to him. This application is, accordingly, disposed of.;