R. Banumathi, J.@mdashBeing aggrieved by the Order dated 12-11-2009 made in W.P. No. 23063 of 2009 ( Picasso Overseas Vs. Cestat,
Chennai, ) directing the appellant to deposit Rs. 75 lakhs and on such deposit the Tribunal to take up the appeal, the appellant has preferred this
appeal. A demand of Rs. 2,73,31,320/- was raised towards anti-dumping duty against import of Compact Fluorescent Lamps (CFL) with chokes
imported through various Bills of Entry from the exporting country/China. As per Notification No. 128/2001, dated 21-12-2001 issued and
effective up to and inclusive of 20th day of June, 2002, provisional anti-dumping duty was imposed on CFL with or without choke originating in or
exported from China or from Hong Kong to India. The appellants provisionally cleared the goods'' pending determination of anti-dumping duty.
When final Notification No. 138 of 2002, dated 10-12-2002 was issued making the levy effective from 21-12-2001, the Department demanded
anti-dumping duty of Rs. 2,73,31,320/- to the aforesaid extent.
2. The appellant did not attend personal hearings fixed by the Department and original authority issued Order-in-Original confirming the demand as
aforesaid. Before the impugned order was passed, there had been three rounds of litigations. Upon remand by the Tribunal, the Commissioner
(Appeals) for the third time again dealt with the same matter and the Commissioner (Appeals) passed the order on 25-1-2009 holding that anti-
dumping duty can be levied at the: interregnum period in accordance with the provisions of law. Following the decision of the Tribunal in the case
of 2006 (193) ELT 17 and other decisions. Commissioner (Appeals) also held that the appellants themselves submitted bond for clearance of
CFL in respect of antidumping and they have never imported energy saving lamps and that the assessee is liable to pay anti-dumping duty the
learned Commissioner passed order for pre-deposit of the entire amount demanded.
3. Being aggrieved by the Order of Commissioner (Appeals) directing pre-deposit of entire amount demanded, the appellant preferred appeal
before the CESTAT. On the question of pre-deposit, the Tribunal heard the matter at length. After referring to number of decisions viz., Assistant
Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, ; Benara Valves Ltd. and Others Vs. Commissioner
of Central Excise and Another, and Vijay Prakash D. Mehta and Another Vs. Collector of Customs (Preventive), Bombay, , the Tribunal held that
it is just and proper to direct the appellant to make pre-deposit to hear the appeal of the appellant. The Tribunal further held that the financial
hardship pleaded by the appellant in the course of hearing on the basis of balance sheet of 2001-2002 is not sufficient evidence for dispensing with
the pre-deposit and directed the appellant to make a pre-deposit of entire antidumping duty of Rs. 2,73,31,320/-.
4. Challenging the order of the Tribunal dated 7-9-2009 (2009 (243) E.L.T. 359 (Tri.-Chennai)) and seeking for a direction to the Tribunal to
hear the appeal filed by the appellant, without insisting for any pre-deposit of antidumping duty, appellant filed writ petition in W.P. No. 23063 of
2009. By the order dated 12-11-2009, the learned single judge held that the order passed by the Tribunal cannot be faulted. However,
considering the financial difficulties of the appellant, the learned single judge directed the appellant to deposit Rs. 75 lakhs within a period of eight
weeks and further directed the Tribunal that on such deposit to take up the appeal and dispose the same in accordance with law.
5. Being aggrieved by the direction to deposit Rs. 75 lakhs, the appellant has preferred this writ appeal. The learned counsel for the appellant
contended that provisional Notification No. 128/2001, dated 21-12-2001 was effective up to 20-6-2002 in respect of the goods imported from
the country of export mentioned in Notification No. 128 of 2001 and the said Notification No. 128 of 2001 has ceased to operate, from the
above date (20-6-2002) and the goods imparted by the appellants after that date are not liable to anti-dumping duty. Further contention of the
appellant is that Notification No. 138 of 2002, dated 10-12-2002 cannot have retrospective operation. It was urged that Section 9A, Sub-section
(3) of the Customs Tariff Act, 1975 does not permit to revive a notification i.e., Notification No. 128 of 2001, dated 21-12-2001 and therefore
levy of antidumping duty based on Notification No. 138 of 2002, dated 10-12-2002 cannot be sustained. It was further contended that when the
goods imported are not liable to anti-dumping duty, the authorities cannot insist for pre-deposit and the authorities and the learned single Judge did
not keep in view that Notification No. 130 of 2002, dated 10-12-2002 cannot have retrospective operation.
6. Heard Mr. Mahadevan, learned counsel appearing for the Department, learned counsel for the Department submitted that as provisional duty
Notification No. 128 of 2001, dated 21-12-2001 ceased to operate after 20-6-2002, the subject matter was left to investigation. The learned
counsel submitted that there is a reference in the Notification No. 138 of 2002, dated 10-12-2002 as to the previous notification making it clear
that anti-dumping duty was leviable from the date of provisional duty notification i.e., 21-12-2001 in respect of the goods imported from the
exporting country. The learned counsel submitted that when the Notification No. 138 of 2002, dated 10-12-2002 made it clear that levy was
intended to take effect from 21-12-2001, the Commissioner (Appeals) and the CESTAT rightly ordered for pre-deposit of the entire amount
demanded.
7. The authority imposed anti-dumping duty in respect of the goods that was imported by the appellants from the exporting country as appearing in
the table under Notification No. 138 of 2002-Customs, dated 10-12-2002. The Commissioner (Appeals) and CESTAT pointed out that in terms
of Para 2 of the Notification, the notifying authority made it clear that the anti-dumping duty imposed under this notification was to be levied with
effect From the date of imposition of such duty i.e., 21-12-2001. According to the appellants, when they imported CFL with chokes, goods were
subjected to provisional anti-dumping duty. Case of appellant is that Notification No. 128 of 2001 ceased to operate after 20-6-2002 and the
subsequent notification No. 138 of 2002, dated 10-12-2002 cannot have retrospective operation with affect from 21-12-2001.
8. On the rival contentions, the Tribunal in extenso discussed the object of the levy of anti-dumping duty. We are on the preliminary question of
pre-deposit of the anti-dumping duty as modified by the Writ Court to Rs. 75 lakhs. The questions as to (i) whether Notification No. 138 of 2002,
dated 10-12-2002 could have retrospective operation? (ii) whether sub-section (3) of Section 9A of the Customs Tariff Act does not permit to
revive notification i.e., Notification No. 128 of 2001, dated 21-12-2001 to survive in terms of Notification No. 138 of 2002? (iii) After
Notification No. 128 of 2001 ceased to operate after 20-6-2002 whether the subject matter was left for investigation; and (iv) when the appellant
imported goods whether the appellants had knowledge about the progress of the investigation are to be determined only by the CESTAT. The
liability of the appellant to pay anti-dumping duty has to be decided only in the main appeal before the Tribunal. The mere fact that the issues that
arise for consideration of the appellate authority are arguable is not in itself sufficient for a complete waiver of pre-deposit. What is to be seen is
whether there is any hardship if pre-deposit is not waived for hearing of the appeal on merits. The answer is that question would largely depend
upon the facts and circumstances of each case.
9. Section 35F of the Central Excise Act reads as under:
35F. Deposit, pending appeal, of duty demanded or penalty levied.--Where in any appeal under this 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 opinion that the deposit of duty demanded
or 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 conditions as he or it may deem fit to impose so as to safeguard the interests 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.
10. Two important expressions used in Section 35F of Central Excise Act are ""undue hardship to such person"" and ""safeguard the interests of
Revenue"". While dealing with the application twin requirements of considerations i.e. consideration of ""undue hardship"" aspect and imposition of
conditions to ""safeguard the interest of the Revenue"" have to be kept in view, (vide Monotosh Saha Vs. Special Director, Enforcement Directorate
and Another, .
11. u/s 35F of Central Excise Act, Tribunal is obliged to consider the question of undue hardship. The Hon''ble Supreme Court in the case of S.
Vasudeva Vs. State of Karnataka and others, held as under:
Under Indian conditions the expression ""undue hardship"" is normally related to economic hardship. ""Undue"" means something which is not merited
by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the
circumstances.
12. In Monotosh Saha Vs. Special Director, Enforcement Directorate and Another, , observing that the word ""undue"" means ""excessive hardship"",
the Hon''ble Supreme Court held as under:
13. For a hardship to be ''undue'', it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to
the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it.
14. The word ""undue"" adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances
warrant.
16. The above position was highlighted in Benara Valves Ltd. and Others Vs. Commissioner of Central Excise and Another, . The decision was
rendered in relation to Section 35F of the Central Excise Act, 1944 where also identical stipulations exist.
Same view was expressed by the Apex Court in another decision relied on by the Revenue reported in Benara Valves Ltd. and Others Vs.
Commissioner of Central Excise and Another, .
13. By following the above decision of the Apex Court, a Division Bench of our High Court in the decision reported in 2011 (270) E.L.T. 519
(Mad.) (Fayshazv Apparels v. ATFE, New Delhi) wherein one of us (R. Banumathi, J.) was a member, held that interim order of dispensation of
deposit should not be passed, merely on establishing a prima facie case and only where it appears that the penalty imposed has no legs to stand or
it would be undesirable to ask the appellant to pay the full or part of the penalty, the Appellate Tribunal can dispense with the condition of pre-
deposit of penalty. It is also observed therein that the courts will have to keep in view the interest of the revenue of the State/Government
Exchequer, while considering the applications for dispensation with pre-deposit.
14. In an yet another decision made in W.A. No. 419 of 2012, dated 17-7-2012 2014 (299) ELT 199 , Division Bench of this Court found as
under:
when the assessee had not established a prima facie case of undue hardship necessarily they should be directed to make pre-deposit. There is no
via media in such cases.
15. In Siliguri Municipality and Others Vs. Amalendu Das and Others, , the Hon''ble Supreme Court held that recovery of taxes cannot be stayed
under Article 226 of the Constitution except under exceptional circumstances. The grant of stay should be exception and not a rule. The only
consideration is to ensure that there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration
at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings.
This object can be attained by requiring the body or authority levying the impost to given an undertaking to refund or adjust against future dues. To
the same effect are the decisions of the Hon''ble Supreme Court in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs.
Dunlop India Ltd. and Others, ; AIR 1997 993 (SC) and M/s. Upadhyay and Co. Vs. State of U.P. and Others, .
16. Considering the question of pre-deposit or otherwise, only the prima facie case and balance of convenience is to be considered. The appellant
is not only required, to plead undue hardship, but also to establish the same before the Tribunal. The order of the Tribunal refers to the financial
hardship pleaded by the appellants in the course of hearing on the basis of balance sheet of 2001-02. The Tribunal has recorded factual findings
that the said hardship pleaded by the appellants on the basis of balance sheet for 2001-2002 is not sufficient. Only considering the financial
difficulties expressed by the appellant, the learned single judge directed the appellant to deposit Rs. 75 lakhs. The appellant has not produced any
further material to establish undue hardship. We do not find any reason warranting interference of the order of the learned single judge. In the result
the writ appeal is dismissed confirming the order dated 12-11-2009 passed by the learned single judge in W.P. No. 23063 of 2009. However,
there is no order as to costs. Consequently, the connected miscellaneous petition is closed.
