Woolworth (India) Limited vs The Commissioner, Central Excise and Another

Deepak Verma, J.—In this petition, filed under Article 226 of the Constitution of India, petitioner is challenging the interim order passed by the Appellate Authority on 9.4.1997 (Annexure P-8), whereby petitioner''s application filed u/s 35(f) of the Central Excise Act has been rejected.

Petitioner''s grievance is that (1) it had made out prima facie case in its favour; (2) that the deposit of the amount of duty, levied, would cause undue hardship to the petitioner; and (3) that balance of convenience swings in favour of the petitioner-therefore, the petitioner''s application should have been allowed. On those averments being made show cause notice against admission was issued to the respondents. Respondents have filed their reply. They have submitted that by a detailed and reasoned order the Appellate Authority has come to the conclusion, that deposit ,of the amounts as assessed by the Assessing Authority is not likely to cause any undue hardship to the petitioner. Submission is that petition being devoid of any merit and substance, deserves to be dismissed.

Learned Counsel for petitioner Shri Upadhyaya submitted that there has not been any compliance with regard to Section 35(f) of the Act. He has taken me through the application filed in this regard by the petitioner along with its appeal. Perusal of the said application Annexure P-6 shows that except for mentioning that the petitioner would suffer undue financial hardship, if a stay order is not passed in its favour, no further details have been given. By the impugned order the learned Appellate Authority has considered the prima facie case and the undue hardship likely to be occasioned to the petitioner and after consideration of the matter has come to the conclusion that no case is made out for grant of stay.

I find that there is no merit or substance in this petition. Petitioner''s appeal is still pending. Even while disposing of petitioner''s application for stay, it was granted time for compliance of the provision of Section 35(f) of the Act. Thus, it cannot be said that any prejudice was caused to the petitioner by the impugned order. As has been mentioned above, petitioner has not been able to successfully show it to this Court as to how it had made out a case which could be said to be covered causing undue hardship to it. In the considered opinion of this Court the basic requirement of Section 35(f) of the Act was not complied with.

In this view of the matter I find that the petition being devoid of any merit and substance is hereby dismissed, but with no order as to costs. CC in two days.