DEVI IRON POWER LTD Vs. COMMISSIONER CENTRAL EXCISE

JUDGEMENT

(1.) In this writ petition under Article 226 of the Constitution of India the petitioner has called in question the legality and validity of the order dated 18/01/2012 passed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi which in turn has been preferred against the order dated 30th September, 2010 passed by the Commissioner, Customs & Central Excise, Raipur.

(2.) Facts of the case, in nutshell, which are relevant for disposal of the present writ petition are that before the said appellate authority the petitioner moved an application for waiver of pre-deposit in accordance with Section 35 F of the Central Excise Act, 1944 on the ground that the demand notice of Rs.135 Lakhs together with equal amount of penalty is based on pure interpretation of legal provisions and there is no allegation that the petitioner has either evaded the tax or has concealed anything which would attract the amount of penalty as well as the original levy, he is entitled to waiver of pre-deposit.

(3.) Learned counsel for the petitioner would argue that the very basis of exercise of jurisdiction to consider a prayer for waiver of pre-deposit is based on the question of undue hardship to the assessee in the event he is required to deposit the amount in question, however, there is no whisper in the impugned order by which it can be gathered that the said aspect of the matter has been considered by the appellate Tribunal and for this reason alone the impugned order deserves to be set-aside.