AMARNATH BANERJEE Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) The writ petitioner assails an order passed by the Tribunal under Section 35F of the Central Excise Act, 1944 in not dispensing with the statutory pre-deposit for an appeal being heard out. The grievance of the petitioner is that the principal ground urged on the merits of the appeal was not considered even on prima facie basis by the Tribunal despite the Tribunal recording the argument in such regard made by the petitioner.

(2.) The petitioner appears to be a manufacturer of plastic bags. Following an enquiry or investigation by the excise authorities, it was discovered that manufactured plastic bags, which were subject to excise duty, had left the manufacturing facility without any excise invoice being drawn therefor. The case run by the petitioner before the authorities is that the goods were made over to a broker on challans but the broker would not part with the goods without due invoices including the excise component, being raised by the petitioner on the buyers. The Commissioner found that the petitioner was liable to excise duly of about Rs. 96 lakh and an equivalent amount by way of penalty. The petitioner has preferred an appeal and prior to the hearing thereof, the petitioner applied invoking the first proviso to Section 35F of the Act.

(3.) The petitioner says the prima facie case made out by an appellant, the financial hardship that the order under appeal is likely to cause to an appellant and the Interest of the revenue are the three factors which ought to be taken into consideration in deciding an application under the first proviso to the section. The respondents do not immediately question such legal position.