M.C. Agarwal, J.@mdashThough the impugned order is common, it deals with four applications under the proviso to Section 35F of the Central
Excise and Salt Act, 1944. Therefore, four sets of Court-fee are payable. Petitioner''s Counsel agrees to make up the deficiency good.
2. By this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated 27th January, 1999 as modified by an
order dated 1st February, 1999 passed in Appeal Nos. 423, 424, 425 and 426-C.E./Appl/ MRT/98 whereby in the aforesaid first appeals the
Commissioner (Appeals) Customs and Central Excise, Ghaziabad was rejected the petitioner''s application for waiver of the conditions of pre-
deposit in exercise of powers under the proviso to Section 35F of the Central Excise and Salt Act 1944.
3. I have heard Shri A.P. Mathur, learned Counsel for the petitioner and Shri Surya Prakash, learned Standing Counsel for the respondents.
4. The dispute is about the Modvat credit which the petitioner availed and which has been denied by the Assistant Commissioner on the allegation
of some procedural deficiency. The dues adjudicated against the petitioner are involved in the aforesaid appeals are as under:
Appeal No. 423 Rs. 52,79,509.02 Paise.
Appeal No. 424 Rs. 18,26,956.00
Appeal No. 425 Rs. 11,193.00
Appeal No. 426 Rs. 52,546.07 Paise.
5. The petitioner applied to the Tribunal to waive the conditions of pre-deposit as it would cause undue hardship to it. The learned Commissioner
rejected the application observing that the balance of convenience is in favour of the department and the company is backed by the multi-national
company and financial hardship was not pleaded as a ground for waiver of pre-deposit. The averment that financial hardship was not pleaded as a
ground for waiving the conditions of pre-deposit is not correct as the copies of the applications which have been filed as annexures to the writ
petition over that the financial condition of company is not sound and if the stay was not granted it would cause grave and irreparable financial
hardship to the appellant. Copy of the annual report for the year 1997-98 containing inter alia the balance sheet and the profit and loss accounts
were also annexed with the memorandum of appeals to show that the petitioner''s net result after the provision for taxes and depreciation was loss.
The fact that a multinational company was a major share holder in the petitioner was not relevant as the petitioner is an independent legal person. In
my view therefore, there was no justification for rejecting the petitioner''s applications in the appeals and requiring it to deposit the whole of the
amount which is more than Rs. 71 lacs.. The petitioner is bound to suffer undue hardship if it is required to deposit the whole of the amount even at
the first appellate stage.
6. The writ petition is, therefore partly allowed and the order passed by the Commissioner in so far as Appeal Nos. 423 and 424 are concerned is
set aside and it is ordered that in case the petitioner deposits within a month from today Rs. 13 lacs towards the adjudicated dues involved in
Appeal No. 423 and Rs. 4.5 lacs towards the adjudicated dues involved in Appeal No. 424, the conditions of pre-deposit of the balance shall
stand waived. The amount involved in Appeal Nos. 425 and 426 are not very large and hence no interference is required in the Commissioner''s
orders in respect thereof.
