ORDER
M.C. Agarwal, J.
1. This petition under Article 226 of the Constitution of India is directed against an order dated 8th August, 1994 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi whereby it partly accepted the petitioner's application under Section 35F of the Central Excises and Salt Act for the waiver of the conditions of pre-deposit of the dues and allowed the petitioner to deposit Rs. 25,00,000/-.
2. I have heard the learned counsel for the petitioner and the learned Chief Standing Counsel for Union of India.
3. The petitioner has filed an appeal before the Tribunal against an order passed by the Collector of Central Excise, Meerut whereby a sum of Rs. 27,68,594/- was levied as excise duty and Rs. 15,00,000 was levied as penalty. It is in respect of these two amounts that the Tribunal has allowed the petitioner to deposit only Rs. 25,00,000/- in compliance with the pre-condition of depositing of the dues before the entertainment of the appeal.
4. The petitioner is manufacturing printed plastic pouches for its customers. For printing the pouches it prepares a cylinder known as gravure printing cylinder which is used to print the material on the plastic films from which the pouches are prepared. It is paying excise duty on the pouches for which it charges a separate amount from the customer towards the cost of the preparation of the printing cylinder and the question was whether the amount so charged should be included in the excisable value of the goods manufactured by the petitioner. On this point, which seems to have been vehemently argued before the Tribunal even for the disposal of the waiver application, the Tribunal has held that the revenue has a prima facie case for raising the demand.
5. It was contended before me that the petitioner is producing the pouches for some time past and this has always been the practice and the department was in the knowledge of the fact that a certain amount is charged to each customer for the preparation of the printing cylinder and, therefore, the Collector of Customs could not raise a demand for a period exceeding six months and that proviso to Section 11A making a larger period available to the revenue was not applicable. The petitioner has annexed a copy of its application moved under Section 35F of the Act before the Tribunal which shows that no such point was raised before the Tribunal. Whether there was a default of the nature mentioned in proviso to Section 11A is a question of fact and if raised would be examined by the Tribunal in the appeal pending before it and since this point was not raised there at this stage, it cannot become a ground of attacking the impugned order.
6. Similarly no plea of financial hardship was raised before the Tribunal under Section 35F. The Tribunal can waive the conditions of pre-deposit of the dues wholly or partially if the appellant before it could show that enforcement of the conditions of pre-deposit would cause undue hardship to the appellant. If no financial constraints are alleged there can hardly be a case to come within the meaning of undue hardship.
7. It was contended that the cost incurred in the preparation of the aforesaid cylinder is not includable in the excisable value of the goods manufactured by the assessee. Reliance was placed on J.G. Glass Industries Ltd. v. Union of India -1992 (62) E.L.T. 291 (Bom.) and Extrusion Processes Pvt. Ltd. v. Assistant Collector of Central Excise - 1988 (36) E.L.T. 531 (Bom.). What cost is includible in the cases of manufacture is a question that depends on the particular facts of each case taking into account the manufacturing process, technique etc. and the ultimate product. It is for the Tribunal to examine whether the amount which has been admittedly charged by the petitioner from its customer towards the cost of preparation of the gravure printing cylinder would be includible in the excisable value of the goods. The Tribunal has observed that the revenue seems to have a prima facie case on the point and it has refrained itself from discussing the matter in detail at the stage of the disposal of the application under the proviso to Section 35F This is not a thing which could patently be held to be not includable in the excisable value of the goods and hence this court also cannot examine the matter in greater details.
8. For the above reasons, the Tribunal's order under challenge suffers from no illegality or irregularity which may justify interference in exercise of the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is, accordingly, dismissed in limine.