OPTHO REMEDIES (P) LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) Heard Shri M.P. Devnath, Advocate assisted by Shri Nishant Mishra, Advocate for the petitioner and Shri Shambhu Chopra, learned counsel for the respondents.ee

(2.) Petitioner had approached this Court earlier by means of Civil Misc. Writ Petition (Tax) No. 924 of 2011 in the matter of consideration of his application made under Section 35F of the Central Excise Act with the allegation that various judgments relied upon by the petitioner for establishing his strong prima facie case had not been considered by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Allahabad, while deciding his application for waiver titled as Stay Application referable to Section 35F of the Central Excise Act. Such writ petition filed by the petitioner was decided by this Court vide judgment dated 11th July, 2011 and it was held that the Tribunal should have considered the judgments relied upon by the petitioner in support of his prima facie case. With reference to the Division Bench judgment of this Court in the case of I.T.C. Ltd. v. Commissioner (Appeals), Cus. & C. Ex., Meerut-I,2005 184 ELT 347 specifically paragraph-35, it was observed that if the assessee has a very strong prima facie case, covered by the earlier judgment of Tribunal or court of law, then the issue of the financial difficulties is not of much relevance,

(3.) Accordingly the order of the Commissioner (Appeals) was set aside and he was directed to reconsider the waiver application termed as stay application. In light of observations made in the judgment of this Court as well as in light of the Division Bench Judgment of this Court in the case of I.T.C. Ltd. . On remand, the Commissioner (Appeals) has reconsidered the waiver application referable to Section 35F of the Central Excise Act and has disposed of the same under the impugned order dated 9th September, 2011. The Assessee has been directed to deposit 50% of the amount of Central Excise Duty demanded along with penalty imposed within two weeks of the receipt of the order to report compliance within one week of deposit. Appeal has been directed be listed thereafter. In case of non-compliance of the condition so imposed, it has been directed that the appeal shall stand dismissed.