Page 142 - ELT_1st September 2020_Vol 373_Part 5

580 EXCISE LAW TIMES [ Vol. 373

Provided further that where an application is filed before the Com-
missioner (Appeals) for dispensing with the deposit of duty and interest
demanded or penalty levied under the first proviso, the Commissioner
(Appeals) shall, where it is possible to do so, decide such application within
thirty days from the date of its filing.”
3. Therefore, if the appellant was capable of showing that there was
any hardship, there could be complete waiver of the pre-deposit, subject to safe-
guarding the interest of the Revenue.
4. Shri Pulak Raj Mullick, Learned Counsel for the appellant, pleads
that the appellant is willing to pay an amount of Rs. 5,00,000/- in all, as pre-
deposit, within a period of five months from today, and the appeal may kindly
be considered on merits thereafter. He further submits that, even on merits, he
has a very good case and there is all probability of him succeeding in the case.
5. The same is disputed by Shri Shobhit Saharia, Learned Counsel for
the respondent. He contends that the pre-deposit is a mandate of law and there is
no hardship, which the appellant has been able to show. Learned Counsel further
contends that the present amended Section 129E of the Customs Act, 1962 postu-
lates payment of duty of 7½% of the duty demanded. He would submit that, in
the instant case, the duty demanded is Rs. 1,48,42,255/- and 7½% of the same
would come to Rs. 11,13,169/-. Therefore, it is pleaded that it would be appro-
priate if the appellant is directed to make payment of any amount closer to that
amount.
6. On hearing Learned Counsels, we are of the view that appropriate
interference is called for.
7. The non-functioning of the assessee is undisputed. The material on
record would indicate that the appellant has also sustained various other losses.
We do not intend to go into the merits of the Appeal, since the same is within the
jurisdiction of the Tribunal. Suffice to hold that, on the basis of the contentions
advanced and the facts stated, we are of the view that it would cause undue
hardship if the appellant is directed to make the pre-deposit. Therefore, we are of
the view that the same constitutes a hardship to the appellant.
8. Therefore, the offer made by the appellant, for payment of Rs.
5,00,000/- within a period of five months from today, requires to be accepted.
The same would also amount to protecting the interest of the Revenue.
9. Under these circumstances, the impugned order passed by the
CESTAT, New Delhi in C/S/2047/11 in C/347/2011, dated 30-4-2013 is modi-
fied. The payment of Rs. 40,00,000/-, as demanded by the Learned Tribunal, is
reduced to a sum of Rs. 5,00,000/-. The appellant to pay a sum of Rs. 5,00,000/-
within a period of five months from today with the respondent. The CESTAT to
proceed in the disposal of the Appeal after such amount has been deposited.
10. The Appeal is disposed off accordingly.

_______

EXCISE LAW TIMES  1st September 2020  142