@JUDGMENTTAG-ORDER
Harish Tandon, J.@mdashThe petitioner challenges the order dated 20th November, 2013 passed by the Customs, Excise and Service Tax Appellate Tribunal (in short "CESTAT"), Eastern Bench, Kolkata disposing of an application for stay as well as waiver of pre-deposit by directing the petitioner to deposit 25% of the duty demanded within 8 weeks from that date. The petitioner alleges that due to devastating fire broken out in the factory, some finished and unfinished goods were completely and/or totally destroyed. In fact an application under Rule 21 of the Central Excise Rules, 2002 for remission of duty was taken out by the petitioner. Subsequently the department issued a show cause notice contemplating to initiate proceedings for assessment of the excise duty and confirmation of demand. Both the proceedings were disposed of by separate orders.
2. Admittedly the petitioner has not assailed and/or challenged the order rejecting the application for remission of duty as according to the petitioner the said order is mere executive and is not capable of being assailed in appeal.
3. The appeal before the Tribunal is preferred by the petitioner against the order of confirming the demand and imposing the duty upon the petitioner.
4. While deciding the application seeking waiver of the pre-deposit, the Tribunal has proceeded to dispose of the same by recording its satisfaction that once an application for remission of duty is rejected, the said order including its findings become final and, therefore, held that no prima facie case is made out.
5. From the recording made by the Tribunal relating to the submissions advanced by the respective parties, it appears that the petitioner took a specific plea that the order passed on an application for remission of duty and the order passed on confirmation of the demand is different, separate, distinct and cannot be mingled.
6. The Tribunal, as recorded earlier, has simply proceeded on the basis that the findings made in the order dismissing the application for remission of duty is binding on the petitioner, in absence of any challenge being thrown to the said order, it has attained finality.
7. On perusal of the provisions contained under Rule 21 of the Central Excise Rules, 2002, this Court finds that the consideration for the said application is different and, therefore, the said order cannot be linked to the order passed on confirmation of the demand. Furthermore the consideration for application seeking waiver of the pre-condition deposit is well recognized, as in such case the authorities must record their satisfaction relating to the undue hardship and while doing so shall also take into account the interest of the Revenue.
8. The aforesaid satisfaction should be arrived independently and on the basis of the materials available with the record or produced before the Tribunal, if permissible under the procedural law. The Tribunal''s finding is solely based on rejection of an application for remission of duty and this Court does not find that there has been any recording to the satisfaction relating to the undue hardship as well as the interest of Revenue.
9. Though Mr. Saraf was very much vocal in contending that the entire memorandum of appeal and the stay application, which run into several pages, do not reflect the averments relating to a prima facie case, but in fact restricted to an order passed on an application for remission of duty.
10. As indicated above, the Tribunal itself has recorded the submissions made by the petitioner, which on meaningful reading relates to the undue hardship and there was a specific stand of the petitioner that the order passed on an application for remission of duty have no nexus to the present proceeding before this Court.
11. This Court, therefore, finds that the Tribunal has proceeded to decide the matter extraneously without recording any satisfaction relating to the existence of a prima facie case, irreparable loss and injury, balance of convenience and inconvenience and undue hardship, which are some of the illustrative ingredients for consideration of the said application.
12. The order impugned is, therefore, quashed and set aside and the matter is remitted back to the Tribunal for its re-consideration. The Tribunal shall make all endeavour to dispose of the said application upon giving opportunity of hearing within three weeks from the date of communication of this order in accordance with law.
13. With these observations, the writ petition is disposed of. There will be no order as to costs.
