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Judgment
Akil Kureshi, J.—Petitioner an industrial undertaking has challenged an order dated 14-12-2010 passed by CESTAT, at Ahmedabad, by virtue of which by way of pre-deposit requirement Petitioner is to deposit a sum of Rs. 40 Lacs with the revenue to be able to maintain its appeal before the Commissioner (Appeals).
Petitioner has set up an industry in Ketch region and seeks benefit of exemption of notification dated 31-7-2001. Question is whether investments made by the Petitioner after 31-12-2005 would qualify for such exemption. It is a stand of the Petitioner that notification dated 31-7-2001 nowhere disqualifies such investments.
2.1 The stand of the revenue is that by virtue of the said notification any investment made after 31-12-2005 would not qualify for exemption. The Assessing Officer having ruled against the Petitioner, Petitioner carried the issue in appeal. Such appeal is pending before Commissioner (Appeals). He insisted full amount demanded in the impugned order by way of pre-deposit pending appeal. Thereupon, the Petitioner approached the Tribunal and sought waiver of pre-deposit requirement. Tribunal on such appeal passed impugned order dated 14-12-2010 and reduced the pre-deposit requirement to Rs. 40 Lacs, which comes to approximate 25% of the demand of the revenue.
Learned Counsel for the Petitioner submitted that the notification dated 31-7-2001 does not disqualify any investment made after 31-12-2005. He further contended that Commissioner (Appeals) and the Tribunal relied on Government of India Notification No. 16/2008, which has been struck down by this Court in a decision in case of Sal Steel Ltd. Vs. Union of India (UOI), He further contended that the financial condition of the company is also weak, requirement of such pre-deposit would cause undue hardship.
On the other hand, learned Counsel for the revenue opposing the petition contended that Circular dated 31-7-2001 is clear. That the Tribunal has not relied on the Notification No. 16/2008. No further reduction in pre-deposit requirement is called for.
Having heard learned Counsels for the parties, we find that question whether the Petitioner''s investments in its industrial undertaking after 31-12-2005 would qualify for exemption by virtue of Notification dated 31-7-2001 is a debatable question. Such question is pending before the Commissioner (Appeals). At this stage, however it cannot be stated that it is such a clear case of denial of exemption which is borne out clearly from the Notification.
5.1 In that view of the matter, request of the Petitioner to waive entire pre-deposit requirement cannot be accepted. However, we find that on the premise that the Petitioner has not maintained separate accounts and therefore it is not possible to segregate benefits of exemption notification on investments of the Petitioner pre and past 31-7-2005, such exemption benefits in the present case have been denied in entirety. We, therefore, find that though the Tribunal has already considered question of financial hardship of the Petitioner, from the record it emerges that Petitioner has been making loss since long couple of years. It has cash on hand of Rs. 22 Lacs.
Considering the totality of the facts and circumstances of the case, we reduce the pre-deposit requirement to Rs. 25 Lacs. The same shall be deposited latest by 15-5-2011. If so done, appeal shall be considered by the Commissioner (Appeals) on merits.
With above directions, petition is disposed of.