Sri Sivasakthi Auto Ancillaries Pvt. Ltd. vs The Additional Commissioner of Central Excise and The Commissioner of Central Excise (Appeals)

V. Dhanapalan, J.—By consent of the learned counsel appearing for the parties, the Writ Petitions themselves are taken up for disposal at

the stage of admission. Heard Mr. C. Seethapathy, learned counsel for the petitioner and Mr. K. Ravindranath, learned Senior Central

Government Standing Counsel, who took notice for the respondents.

The petitioner calls in question the common order of the second respondent in Order-in-Stay Petition Nos. 33 and 34/2013 (M-IV), dated

22.2.2013, seeking to quash the same in so far as it orders payment of a pre-deposit of 50% of the duty confirmed by the first respondent in

Order-in-Original Nos. 08 and 09/2012-13, dated 30.8.2012 and consequently to direct the second respondent to take up the appeals of the

petitioner, viz., A. Nos. 103 and 104 of 2012 (M-IV) on merits and dispose of them in accordance with law, without insisting on any pre-deposit.

The petitioner is a Company incorporated under the Companies Act and is a manufacturer of sheet metal components for motor vehicles falling

under Chapter 87 of the First Schedule to the Central Excise Tariff Act and they are registered with the Central Excise authorities. It is the claim of

the petitioner-Company that it is a small scale industry, registered with the Directorate of Industries and Commerce, employing about 55

employees, which includes contract labourers also. The petitioner avails CENVAT credit of the excise duty paid on its capital goods and also of

the excise duty paid on its inputs and input services, as contemplated under the CENVAT Credit Rules, while complying with all the procedural

formalities stipulated therein.

For the month of March 2010, the petitioner''s excise duty liability was Rs. 5,21,584/- and they paid a portion of the same amounting to Rs.

69,718/- by debiting its Personal Ledger Account (PLA) and another portion amounting to Rs. 3,81,820/- was paid by debiting its CENVAT

credit account. Therefore, more than 85% of the central excise duty payable for the month of March 2010, was paid by the petitioner within the

prescribed time. The balance duty of Rs. 70,046/- along with interest amounting to Rs. 3,467/- was paid on 21.8.2010. There was a similar delay

in payment of duty for some of the subsequent months.

The petitioner further alleges that since the part payment of the duty was paid beyond a period of 30 days, a show cause notice bearing No.

19/2011, dated 2.6.2011 was issued by the first respondent, proposing demand of the duty amount paid for the period May 2010 to December

2010, which the petitioner paid by debiting its CENVAT credit account, apart from charging interest and imposing penalty. The petitioner

contends that according to the Revenue authorities, the petitioner ought not to have discharged the duty liability for the said period of May 2010 to

December 2010 by debiting CENVAT credit account and the same ought to have been paid on consignment basis, i.e. paid in PLA/cash, without

utilisation of CENVAT credit. This was due to the fact that the petitioner had not paid the entire outstanding duty with interest thereon at that time.

Contravention of Rules 8(3) and 8(3-A) of the Central Excise Rules, was alleged.

It is further alleged by the petitioner that for the subsequent period of debit in the petitioner''s CENVAT account, viz., January 2011 to October

2011, a similar show cause notice bearing No. 52 of 2011, dated 3.1.2012 was issued by the first respondent. In view of the fact that the

petitioner''s officials were dealing with the financial crisis of the Company and were also trying to meet the requirements of the buyers and as the

person looking after these matters, namely Mr. D. Vaidyanathan, was suffering from acute jaundice, the petitioner sought for adjournment of the

personal hearing, but the first respondent proceeded on both the show cause notices for adjudication together and passed common order in

Order-in-Original Nos. 08 and 09 of 2012-13, dated 30.8.2012, demanding duty for Rs. 42,84,883/- and Rs. 48,46,517/-, along with interest

and also imposed penalty of Rs. 22,85,000/-.

Aggrieved by the said order dated 30.8.2012, the petitioner preferred appeals before the second respondent in A. Nos. 103 and 104 of 2012

(M-IV) along with stay petitions bearing Nos. 33 and 34 of 2013 (M-IV) and the matters were contested. After giving personal hearing, on

22.2.2013, the second respondent passed the impugned common order dated 22.2.2013 in Order-in-Stay Petition Nos. 33 and 34 of 2013 (M-

IV), directing the petitioner to make pre-deposit of 50% of the duty confirmed, as ordered in the order of the first respondent, dated 30.8.2012,

and pay the same in cash/PLA by 21.3.2013 and waived the pre-deposit of interest and penalty u/s 35-F of the Central Excise Act. It was further

observed by the second respondent in the impugned order that if the petitioner fails to pay the said pre-deposit before the said due date, the

appeals are liable to be dismissed for non-compliance of the condition of stay granted in terms of Section 35-F of the Central Excise Act, without

any further notice; subject to complying with the above direction, the second respondent further directed that the petitioner is given an opportunity

of being heard in person on 22.3.2013 by 11 a.m. in respect of the main appeals preferred by the petitioner. Challenging the said order dated

22.2.2013 passed by the second respondent, these Writ Petitions are filed for the above relief.

The main focus of the arguments advanced by the learned counsel for the petitioner is that the respondents ought to have appreciated that more

than 85% the duty payable for the month of March 2010, was paid in the same month itself and the balance portion of the duty was paid later; the

petitioner was facing acute financial crisis and incurred a loss of more than Rs. 100 lakhs; this aspect has not been appreciated by the second

respondent; without waiving the entire pre-deposit amount, the impugned order has been passed and therefore, undue hardship and the financial

burden shown by the petitioner has not been considered by the second respondent while passing the impugned order.

On the other hand, learned counsel for the respondents-Revenue contended that it is mandatory on the part of the petitioner to pay the pre-

deposit amount, which is the pre-condition for entertaining the appeals. He further contended that only on certain contingencies like the financial

burden, undue hardship, etc., and after considering the prima-facie case and the balance of convenience of the party, there could be waiver of the

pre-deposit. In the present case, the second respondent weighed the entire situation and ordered pre-deposit of 50% of the duty confirmed by the

first respondent-original authority. He further stated that the second respondent was lenient and sympathetic in ordering pre-deposit of 50% of the

duty confirmed, for the periods in question, and also waived the interest and penalty imposed, which normally cannot be questioned before this

Court; without paying the amount as ordered by the second respondent in the impugned common order, the petitioner has chosen to question the

lenient approach of the second respondent, by filing these Writ Petitions, which are not maintainable.

I have heard the learned counsel appearing for the parties and perused the material documents available on record including the impugned

order.

It is not in dispute that the petitioner-Company is a registered manufacturer of sheet metal components for motor vehicles and they have

availed CENVAT credit of the excise duty paid on its capital goods and also of the excise duty paid on its inputs and input services, as

contemplated under the CENVAT Credit Rules and complied with all the procedures and formalities stipulated therein. For the periods May 2010

to December 2010 and January 2011 to October 2011, in respect of the petitioner''s excise duty liability, proceedings were initiated by the first

respondent by issuing show cause notices, dated 2.6.2011 and 3.1.2012 respectively, which were adjudicated, and after hearing the petitioner, the

first respondent-original authority passed the order, dated 30.8.2012, demanding duty amounts with interest and also imposed penalty, against

which, the petitioner preferred appeals before the second respondent along with stay petitions. The second respondent, keeping the interest of the

Revenue in mind and taking into account the balance of convenience of the petitioner, ordered pre-deposit of 50% of the duty confirmed for the

respective periods and also waived the interest and penalty, failing compliance of the said condition, it was observed by the second respondent that

the appeals are liable to be dismissed without any further notice, against which, the petitioner filed these Writ Petitions on the ground that the

financial burden and undue hardship shown by the petitioner have not been considered by the second respondent.

It is prescribed by the statute that before entertaining any appeal, it is mandatory on the part of the appellant to pay the pre-deposit amount

and the appellant as a matter of right, can also make applications for stay of the order of the authority concerned and for waiver of the pre-deposit

amount.

In the present case, the petitioner having filed the appeals along with stay petitions and petitions for waiver of pre-deposit, before the second

respondent, the law will take its own course in respect of considering the prima-facie case, balance of convenience, undue hardship and the

financial burden of the petitioner. The petitioner-Company projected their case before the second respondent-appellate authority on the financial

crisis faced by them and also shown the undue hardship and prayed for waiver of the pre-deposit in entirety. The second respondent, considering

the material facts and looking into the balance of convenience and the prima-facie case of the petitioner, and also keeping in mind the interest of the

Revenue, reduced the pre-deposit amount to the extent of 50% of the duty confirmed and also waived the interest and penalty; in case of non-

compliance of the condition, it was made clear by the second respondent-appellate authority that the appeals are liable to be dismissed without any

further notice.

Law is well settled that if a party pleads undue hardship or financial constraint, the appellate authority/Tribunal will take note of the prima-facie

case and the balance of convenience of the party and also keep in mind the interest of the Revenue and the capacity of the party to pay the amount

and will pass appropriate orders while ordering pre-deposit before entertaining the appeal. Such cardinal principles are in the discretion of the

appellate authority/Tribunal, in deciding as to what is the undue hardship, financial burden, etc., of a party before ordering pre-deposit/waiver of

pre-deposit.

In the instant case, the second respondent-appellate authority has viewed the matter sympathetically and shown lenient approach while

reducing the pre-deposit amount to the extent of 50%, apart from waiving the interest and penalty. If such a course is adopted by the second

respondent taking note of the principles by waiving 50% of the pre-deposit amount, it is not for this Court to interfere with the same. Therefore,

this Court is of the considered opinion that the second respondent-appellate authority has given due consideration of the financial burden and

undue hardship pleaded by the petitioner, and hence, the amount of pre-deposit ordered by the second respondent is no way legally infirmed,

which is accordingly confirmed, as there is no scope of interference in the same in the light of the settled legal principles.

Learned counsel for the petitioner made a plea that the date fixed for payment of the pre-deposit amounts is 21.3.2013; since the petitioner

has to mobilise the funds for paying the pre-deposit amount, some time may be granted to the petitioner to pay the pre-deposit amounts ordered

by the second respondent in the impugned order and on such payment, he requested that the second respondent-appellate authority may be

directed to take up the appeals themselves and dispose of the same within a reasonable time limit. Learned counsel for the respondents/Revenue

has no objection for such course.

In the light of the above submissions made by the learned counsel appearing for the parties and considering the facts and circumstances of the

case, the petitioner is directed to pay the pre-deposit amounts as ordered by the second respondent-appellate authority in the impugned common

order, dated 22.2.2013, within a period of three weeks from the date of receipt of a copy of this order; on such payment, the second respondent

is directed to take up the appeals themselves and after affording an opportunity of hearing to the petitioner, dispose of the appeals, on merits and in

accordance with law, within a period of four weeks thereafter. With the above observations and directions, the Writ Petitions are disposed of. No

costs. The Miscellaneous Petitions are closed.