Judgment:
Deepak Verma, J.
1. With the consent of the patties, the petition is heard on merits.
2. The petitioner is aggrieved by an order passed by the respondent communicated to it by a telegram. It is mentioned in that telegram that vide order passed on 8-3-1995; wherein it has been found that the petitioner was not able to satisfy the respondents that it had a prima facie case and consequently the petitioner's prayer for stay was rejected. The said telegram has been filed as Ann. P. 6 to the petition.
3. Counsel for the petitioner submits that an appeal, was filed under Section 35 of the Central Excises and Salt Act, 1944. Along with the said appeal an application under Section 35F of the Act was also filed praying therein that during the pendency of the appeal the Modvat credit Already availed of by the petitioner may not be recovered. It appears from the perusal of the telegram that the said application of the petitioner has been rejected. Feeling aggrieved by the rejection of the application under Section 35F of the Act the petitioner has approached this Court.
4. Contention of the Counsel for the respondents is that deposit of the money demanded by the respondents is condition precedent as per Section 35F of the Act. However, the same can be waived or dispensed with only if deposit of the money is going to cause undue hardship to such a person and a prima facie case has been made out.
5. Submission of the respondents is that in case the petitioner was not successful in establishing the prima facie case in its favour, nor it was able to make out a case of undue hardship, the consequence is to reject the stay application.
6. Be that as it may. From the perusal of the telegram it does not appear that the respondent had considered the two aspects in details :
(1) whether the petitioner has been able to make out a prima facie case;
and
(2) whether the petitioner is going to suffer undue hardship or not.
The respondent which is discharging judicial function, is expected to pass a reasoned and detailed order.
7. The matter is, therefore, remanded back to the respondent for considering the petitioner's application afresh on merits and then to pass a detailed order about the prima facie case of the petitioner as also about undue hardship that the petitioner may suffer, if stay is riot granted. It is also expected that the respondents shall decide the appeal filed under Section 35F of the Act, as expeditiously as is possible.
8. Consequently the order communicated through Telegram Ann. P. 6, dated 8-9-1995 is set aside and the matter is remanded back to the respondent for deciding the matter afresh in the light of the observations made above. Petition is disposed of finally with no order as to costs. C.C. on payment.