ARUN ENTERPRISES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE present appeal arises from the order dated 23 -12 -2008 passed in Appeal No. 304/2008 by Commissioner (Appeals), Ghaziabad.

(2.) FEW facts relevant for the decision in the matter are that the appellant sought to challenge the original order dated 31 -3 -2008 passed by the Additional Commissioner, Central Excise, Ghaziabad in the matter whereby the Additional Commissioner had confirmed the demand for Rs. 22,06,738/ - under Section 11A(1) of the Central Excise Act, 1944 against the appellant and also confirmed the demand for interest on the said amount at the applicable rates under the provisions of Section 11AB of the said Act and further imposed penalty of Rs. 22,06,738/ - in exercise of power under Rule 25 of the Central Excise Rules, 2002 read with Section 11AC of the said Act. The said order was sought to be challenged on the various grounds including the ground that the demand in question was time -barred as the differential amount of cartage shown in the balance sheet was to the knowledge of the Department and hence there was no case for allegation of suppression of the said fact. Along with the appeal the appellant also preferred an application for exemption from the requirement of payment of the amount claimed under the original order. The Commissioner (Appeals) by order dated 28 -11 -2008 directed that an amount of Rs. 12,58,753/ - being the balance amount due in terms of the impugned order be deposited as pre -deposit in terms of Section 35F of the said Act, while staying the certain remaining demands. The appellant did not comply with the direction to deposit the amount of Rs. 12,58,743/ - and has sought to challenge the said order on the ground that the lower appellate authority failed to consider the aspect regarding the bar of limitation while ordering the deposit of the said amount.

(3.) LEARNED DR on the other hand, placing reliance in the decision of the Apex Court in Benara Valves Ltd. v. Commissioner of Central Excise reported in : 2008 (12) S.T.R. 104 (S.C.) : 2006 (204) E.L.T. 513 (S.C.) submitted that the mandate of Section 35F of the said Act clearly requires the appellant to satisfy that the direction to deposit the duty demanded or penalty levied would cause undue hardship and failure in that regard would not entitle the appellant to claim any benefit on the ground that the amount was deposited prior to hearing the appeal. According to learned DR, the appellant neither pleaded any undue hardship nor even the hardship as such on account of duty or penalty, nor the record discloses possibility of any such hardship to the appellant in case such direction for deposit is issued to the appellant and considering the same no fault can be found in the impugned order.