Judgment:
1 ORDER
SHEET W.P.1199 of 2013 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE MANGAL STEEL ENTERPRISE LTD & ANR Versus COMMISSIONER OF CENTRAL EXCISE BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 11th April, 2014.
Appearance : Mrs.C.Alam, Adv.Mr.R.Bharadwaj, Adv.Mr.K.K.
Maity, Adv.The Court : The petitioner have challenged the order dated 15th May 2013 passed by the CESTAT Kolkata whereby and whereunder the application seeking waiver of pre-deposit of the CENVAT Credit is disposed of directing the petitioner to pay 25 percent of the demand on account of CENVAT Credit within eight weeks from that date.
The petitioner submits that the Tribunal did not take into consideration the financial hardship of the petitioner while determining the said application.
It is not in dispute that on the basis of the show-cause notice a proceeding was initiated against the petitioner and the adjudicating officer ultimately found that the petitioner is liable to pay Rs.90 lakhs and odd for the CENVAT Credit which he availed wrongfully and further imposed the penalty of equal amount.
Section 35 of the Central Excise Act postulates that the Tribunal while considering an application seeking waiver shall not only take into simultaneously consideration keep in mind the the undue interest hardship of the but shall revenue.
The Tribunal has not recorded any reason either for waiver of the 75 percent of the demand or imposition of the condition for deposit of 25 percent thereof.
On perusal of the application this Court finds that the Tribunal itself has come to the conclusion that the petitioner has not made over strong prima facie case for the total waiver.
Financial hardship is one of the ingredients to be taken into account while deciding the aforesaid application which obviously shall be considered upon making a prima facie case.
Though the discretionary order should not be readily interfered in exercise of the power of the judicial review but on hearing the respective parties and on materials available in this writ petition this Court feels that Tribunal ought to have taken into account the financial hardship that would be caused to the petitioner.
This Court, therefore, modifies the impugned order to the extent that instead of 25 percent of the CENVAT Credit the petitioner shall deposit a sum of Rs.18 lakhs within six weeks from date.
If the deposit is made within the time as indicated above the Tribunal shall hear out the said appeal as expeditiously as possible and preferably within two months therefrom.
In default of the deposit of the amount as aforesaid this order shall automatically stand recalled and the writ petition shall deem to have been dismissed.
With these observations the writ petition is disposed of.
No costs.
(HARISH TANDON, J.) SBI