ORDER K.L. Sharma, J.
1. This is a writ petition under Article 226 of the Constitution of India directed against the order dated 22-3-1995 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi passed on the waiver application under proviso to Section 35F of the Central Excises and Salt Act, 1944 filed in Appeal No. 396/94-NRB whereby the petitioner has been directed to deposit a sum of Rs. Five Lacs by way of penalty as imposed by the Collector of Central Excise, New Delhi.
2. I have heard Shri Sudhir Chandra, Senior Advocate appearing for the petitioner as well as Shri Shishendra Kumar, Standing Counsel for Central Government and also perused the material brought on record. Learned Standing counsel for the Union of India informs that no counter affidavit will be filed in this petition. As agreed by both the learned counsel, this petition is being finally disposed of at the admission stage.
3. Mr. Sudhir Chandra, learned Senior Advocate appearing for the petitioner has argued that by the impugned order dated 22-3-1995 the learned Tribunal has found strong prima facie case for waiver of demand and penalty levied in the case of M/s Kanpur Cigarettes (P) Ltd. and has directed the Company to deposit only Rs. Two crore out of Rs. 18 crores towards duty and Rs. 20 lacs towards the penalty out of Rs. 1 crore and 18 lacks; whereas the petitioner has been directed to deposit a sum of Rs. 5 lacs out of Rs. Fifty lacs levied as penalty by the Collector, Central Excise. But this court in writ petition No. 725 of 1995, vide, order dated 25-5-1995 set aside the condition of pre-deposit of Rs. Two crore twenty lacs and directed the Tribunal to dispose of the petitioner's appeal as expeditiously as possible and consequently this petitioner should also be exempted from depositing Rs. Five lacs as a pre-condition for the disposal of the appeal filed by the petitioner. It is true that the learned Tribunal has in its detailed order dated 22-3-1995 found a strong prima facie case in favour of M/s. KCPL for partial waiver of the amount of duty and penalty but on the basis of that finding the petitioner is not entitled to get the benefit. The learned Senior Advocate submitted that on the ground of parity and the appeal involving the same question between M/s. KCPL and the petitioner, the condition of pre-deposit should have been dispensed with in the case of petitioner also.
4. I have carefully gone through the judgment dated 25-5-1995 rendered by Hon. M.C. Agarwal, J. in Writ Petition No. 725 of 1995 [reported in 1995 (80 E.L.T. 778 (All.)] between Kanpur Cigarettes (P) Ltd. v. Collector of Central Excise and Ors. and I find that this Court has also considered the question of hardship so far as it relates to Kanpur Cigarettes (P) Ltd. and has opined that considering the strong prima facie case of hardship faced by Kanpur Cigarettes (P) Ltd. the Tribunal should have waived the condition of pre-deposit. I am afraid that the petitioner cannot get the benefit of the decision regarding the financial hardship of M/s. Kanpur Cigarettes (P) Ltd. The petitioner has to establish its own prima facie case and hardship for the purpose of waiver of the condition of pre-deposit under proviso to Section 35F of Central Excises and Salt Act. Unfortunately the learned Tribunal has committed an error apparent on the face of the impugned order dated 22-3-1995 that it has omitted to consider the individual hardship and prima facie case of M/s. Parasrampuria Trading & Finance Ltd. and other Industries. Therefore, what is imperative is that the Tribunal should have itself first considered the waiver application of M/s. Parasrampuria Trading & Finance Ltd. on the questions of its prima facie case and hardship for complying with the condition of pre-deposit of Rs. Five lacs. The learned counsel for the petitioner informs that the petitioner had submitted all the necessary material on the questions along with the application for waiver of the pre-deposit. In these circumstances, this Court considers proper to issue necessary directions to the learned Tribunal for considering the waiver application of the petitioner afresh. There is nothing else to be adjudicated by this Court in this writ petition.
5. Accordingly, this writ petition is finally disposed of with the direction that the learned Tribunal shall reconsider and decide the waiver application of the petitioner namely M/s. Parasrampuria on the basis of the material supplied by the petitioner on the points of prima facie case and hardship to comply with the condition of pre-deposit under proviso to Section 35F of Central Excises and Salt Act, 1944 within a period of four weeks from the date of receipt of a certified copy of this Court's order and until the decision thereon the Appeal No. 396/94/NRB filed by the petitioner should not be dismissed on account of non-compliance of the condition of pre-deposit of Rs. Five lacs as directed by the impugned order dated 22-3-1995.
Let a certified copy of order be issued on payment of usual fee by tomorrow.