Jai Balaji Industries Limited vs Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench

Indira Banerjee, J.—The petitioner carries on business of manufacture and sale of iron and steel products. The petitioner has factories in Durgapur in West Bengal and in the State of Orrisa. The petitioner set up 3 plants within one factory premises namely a mini, blast furnace, steel melting shop and sinter plant. Raw materials such as mild steel angles, mild steel channels, mild steel beam, mild steel joints, mild steel plate, sheets and pipes required for fabricating various components and parts were procured by the petitioner from time to time.

Out of the total quantity of approximately 42300 MT of various Iron and steel materials for example angles channels beams pipes etc purchased and procured, the petitioner consumed 37970 MT of structural steel but availed credit of Excise duty for the only 3349 MT.

According to the petitioner the petitioner did not avail any credit of the Excise duty on 4500 metric tons used in civil structures. In November 2008, the petitioner received a show-cause notice dated 21st of November 2008 issued by the respondent number 2 alleging that the petitioner had contravened the provisions of rule 4 and 6 of the credit rules 2004 as amended, by availing credit of duty paid on angles, channels etc. since they were neither defined as capital goods under rule nor as inputs under rule of the credit rules 2004 it was further alleged that the petitioner had violated the provisions of the Central Excise rules 2002 by not showing such availment in its monthly returns during the period from April 2006 till July 2008.

By a letter dated 10 January 2009 the petitioner replied to the show cause notice. Thereafter a personal hearing was granted to the petitioner by the respondent No. 2 on 1st December 2009.

By an order in original dated December 31, 2009 the respondent No. 2 rejected the petitioner''s contentions and confirmed the allegations made in the show cause notice including the purported demand of duty. The respondent No. 2 also imposed penalty of equivalent amount on the petitioner.

Being aggrieved by the said purported order dated December 31, 2009 of the respondent No. 2 the petitioner filed an appeal before the Central Excise Service Tax Tribunal, hereinafter referred to as the learned Tribunal, on the inter alia the grounds contained in the appeal petition.

In the appeal, the petitioner filed an application for waiver of pre deposit and penalty in terms of section 35F of the Central Excise Act 1944 and for stay of operation of the impugned order of the respondent number 2 till the disposal of the appeal. The stay application filed by the petitioner was heard on 27th June 2012 when the petitioner submitted its written submissions.

However, by the impugned order dated 27 June 2012 the learned Tribunal perfunctorily and without even considering whether or not there existed prima facie case in favour of the petitioner, as contended by the petitioner, came to the conclusion that the petitioner had not been able to make out a prima facie case for a total waiver of pro-deposit inasmuch as there were claims and rival claims on behalf of the petitioner and the Revenue based on appreciation of evidence as produced by both sides.

The Tribunal also summarily rejected the petitioner''s contention as regards financial hardship on the purported ground that the petitioner was unable to substantiate the same. The learned Tribunal directed the petitioner to pre-deposit 25% of the duty demand pertaining to the normal period that is, Rs. 6.2 crores within 8 weeks and to report compliance thereof.

It is now well settled that in considering the question of waiver of pre deposit the Tribunal is bound to consider the prima facie merits of the case. Prima facie case does not mean a gilt edged case as held by this Court in Ruby Rubber Industries Vs. Commissioner of C. Ex., . The Tribunal is to examine whether the case made out by the appellant is an arguable one.

Where an assesses has a good prima facie case and the disputed duty or penalty has apparently been charged wrongfully, the requirement of pre deposit of the disputed tax or penalty is liable to be waived, since pre deposit of tax not payable by an assesses would in itself cause hardship to that assesses, as held by this Court in Bongaigaon Refinery and Petrochem. Ltd. Vs. Collr. of C. Ex. (A), .

The judgments of this Court in Ruby Rubber Industries (supra) and Bongaigaon Refinery & Petrochem Ltd. (supra) were followed by this Bench in Tijiya Steel Pvt. Ltd. and Another Vs. Union of India (UOI) and Others, .

In M/s. Tijiya Steel Put. Ltd. (supra) this Court has observed that in considering the question of waiver of pre-deposit, two factors are of paramount importance, the financial capacity of the appellant and the prima facie case. The financial capacity of the appellant has to be considered in all cases, irrespective of the prima facie merits of the case. Even where an appellant has the financial capacity to deposit the disputed tax and/or penalty, pre-deposit might have to be waived if the appellant makes out a strong prima facie case.

Where there is a very good prima facie case, pre-deposit would have to be waived altogether. Where the appellant has an arguable case, pre-deposit might be waived on such conditions as would protect the interest of Revenue.

In Farmania Steel Works vs. Union of India reported in 2011 (274) ELT 331 (Cal.) this Court set aside an order of pre-deposit because the order did not disclose reasons for directing pre-deposit of rupees four lakhs. In this case too the reasons for directing lump sum deposit of 25% of the duty demand, that is, Rs. 6.2 Crores have not been disclosed.

In Amitava Saha vs. CESTAT reported in 2007 (215) ELT 173 (Cal.) this Court in effect and substance held that an order of Appellate Authority for pre-deposit of a lump sump amount which was devoid of reasons for deposit of that amount, was in flagrant violation of principles of natural justice.

In CEAT Ltd. vs. Union of India reported in 2070 (250) ELT 200 (Bom.) a Division Bench of Bombay High Court observed:

"12. As noted above there are two important expressions in section 35F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva Vs. State of Karnataka and others, that under Indian conditions expression "undue hardship" is normally related to economic hardship, "undue" which means something which is not merited by the conduct of the claimant, oils very much disproportionate to it. Undue hardship is caused when the hardship is caused when the hardship is not warranted by the circumstances.

For a hardship to be ''undue'' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it."

The Appellate Authority has, under section 35F of the Central Excise Act, been conferred with discretion to waive pre-deposit in a case where pre-deposit would cause undue hardship to the appellant. As held by a Division Bench of this Court presided over by P.D. Desai, C.J. in J.N. Chemical (Pvt.) Ltd. Vs. CEGAT, where enabling or discretionary power is conferred on a public authority, the words which are permissive in character may be construed as involving a duty to exercise the power. Thus, where the facts and circumstances of the case warrant dispensation of pre-deposit, pre-deposit must be dispensed with.

In J.N. Chemical (Pvt.) Ltd. (supra) the Division Bench found that the appellant was covered by another decision of the Tribunal. The Division Bench, therefore, examined the findings with regard to prima facie case and observed that it was impossible for the Tribunal to arrive at the conclusion that it could not be said that the appellant had a good prima facie case.

In ITC Limited Vs. CC (Appeals) and CE and Others, a Division Bench of Allahabad High Court held that while the Court should not grant stay of recovery for the asking, at the same time, while considering an application for waiver of pre-deposit, the Court must apply its mind as to whether the appellant has a strong prima facie case on merits. If an appellant having a strong prima facie case on merits is asked to deposit the amount assessed or penalty imposed, it would cause undue hardship to the appellant.

In Indu Nissan Oxo Chemicals Ind. Ltd. Vs. Union of India (UOI) and Others, , the Supreme Court held:-

"12. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assesses to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assesses to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens'' faith in the impartiality of public administration, interim relief can be given."

In Monotosh Saha Vs. Special Director, Enforcement Directorate and Another, the Supreme Court held:

"6. Principles relating to grant of slay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially.

The applicable principles have been set out succinctly in Siliguri Municipality and Others Vs. Amalendu Das and Others, and Samarias Trading Co. Pvt. Ltd. Vs. S. Samuel and Others, and Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, .

It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assesses to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assesses to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake citizens'' faith in the impartiality of public admission, interim relief can be given.

It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality and Dunlop India cases (supra) without analysing factual scenario involved in a particular case."

In considering the question of undue hardship and the waiver of pre deposit, 2 factors are of paramount importance, the financial ability of the sustainability of the disputed claim against the appellant. The financial capacity of the appellant has to be considered in all cases, irrespective of the prima facie merits of the case. Even where an appellant has the financial capacity to deposit the disputed tax and/or penalty pre deposit may have to be waived if the appellant makes out a strong prima facie case.

Where there is a very good prima facie case or/a gilt edged case pre deposit would have to be waived altogether. If the appellant has an arguable case pre deposit might be waived on such conditions as would protect the interests of Revenue.

In fact, the learned Tribunal was conscious of its duty to consider the prima facie case and accordingly recorded a finding that the appellant had not been able to make out a prima facie case for total waiver of pre deposit. The finding is not supported by reasons. The learned Tribunal did not deal with the submissions of the parties which the learned Tribunal was obliged to do.

Pre-deposit of duty and penalty pending the hearing of an appeal is a statutory requirement under section 35F of the Central Excise Act 1944. Pre deposit might only be dispensed with, upon satisfaction that pre deposit would cause hardship and not otherwise.

An order disposing of an application for dispensation of the requirement of pre-deposit of the disputed duty and/or penalty has to be reasoned. Even though detailed reasons might not be necessary, some reasons are obligatory. The order should disclose the process of reasoning that led to the decision.

In the instant case, as observed above, the learned Tribunal has recorded the submissions made on behalf of the petitioner but not given its findings thereon. Furthermore the impugned order does not disclose why the petitioner was required to deposit only 25%.

The learned Tribunal could have waived pre deposit of disputed duty or penalty in part if it were satisfied that the deposit of the entire duty or penalty would cause financial hardship but not partial deposit or alternatively if the Tribunal were of the prima facie view that the disputed duty and/or penalty might only be partly sustainable. In the instant case the impugned order does not indicate how much of the disputed duty is prima facie sustainable, and how much is not.

The learned Tribunal could not have exercised its power to waive pre deposit of duty disputed, even in part without explaining the reason for doing so. The power of dispensation cannot be exercised arbitrarily or whimsically or for the asking. Satisfaction that pre-deposit of the duty demanded would cause undue hardship is the condition precedent for exercise of the power to dispense with the deposit either fully or in part.

As hold by this Court in Tijiya Steel vs. Union of India (supra) an order directing pre-deposit or an order waiving pro-deposit may not involve any question of law far less a substantial question of law and hence may not be appealable. An order directing deposit of disputed duty or penalty either in full or in part is not ordinarily appealable. It cannot, therefore, be said that the petitioner has an adequate efficacious alternative remedy.

Article 226 of the Constitution of India does not impose any limitation on the power of the High Court to issue writs, even when there is an alternative remedy. Whore there is an efficacious alternative remedy this Court refrains from exercising its extra ordinary jurisdiction. This Court would not reject an application under Article 226 of the Constitution of India where the remedy, if any, of appeal is uncertain as in the case of the appeals under section 35G of the Central Excise Act 1944 which depend on subjective satisfaction of the Division Bench of the High Court, of existence of a substantial question of law.

In any case, there are at least 3 exceptions to the rule of alternative remedy. A writ application might be entertained where the order is in violation of principles of natural justice, where the order has been passed under a law which is ultra vires or is otherwise without jurisdiction or in case of an order which is perverse. The impugned order is non-speaking and hence in violation of principles of natural justice.

The impugned order is set aside. The tribunal shall consider the question of waiver of pre-deposit a fresh in accordance with law, after considering all relevant factors and in particular the submission of the petitioners with regard to the prima facie case in appeal as also the financial capacity of the petitioner.

Needless to mention, that it will be open to the learned Tribunal to dispense with pre-deposit on such conditions that the Tribunal might deem fit to impose, to safeguard the interests of revenue. In any case, till disposal of the appeal, the petitioner shall not transfer dispose of or alienate its assets and properties except for sale of finished goods in ordinary course of business. In any case the appeal may be heard and disposed of expeditiously preferably within 8 weeks from the date of communication of this judgement and order.

The writ application is disposed of accordingly. Photostat certified copy of this judgment, if applied for, be supplied to the parties expeditiously, subject to compliance with the requisite formalities.