HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH PRESENT THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO CENTRAL EXCISE APPEAL NOs.117 AND 118 OF 2014 DATED:13.11.2014 Between:
M/s. Kumar Cotex Limited Dokiparru Village Medikonduru (Mandal) Guntur District Andhra Pradesh … Appellant And The Commissioner of Customs Central Excise & Service Tax Null B.P. No.331, C.R. Building Kannavari Thota Guntur Andhra Pradesh … Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO CENTRAL EXCISE APPEAL NOs.117 AND 118 OF 2014 COMMON JUDGMENT: (per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta) C.E.A. NO.117 OF 2014 After hearing the learned counsel appearing for the parties, we admit the appeal on the following substantial question of law.
“Whether the learned Tribunal has failed to exercise jurisdiction in not deciding the question of financial hardship though raised specifically in the application in the matter of waiver of pre-deposit?”
We have gone through the impugned order of the learned Tribunal and we noticed that the learned Tribunal was engrossed in prima facie case in the matter in dealing with the prayer for waiver of pre-deposit. In paragraph 5 of the application a specific plea was taken that the appellant company has stopped production and is defunct for the past several years and that the assets of the company are being held by various banks and that the appellant would face undue financial hardship if the Hon’ble Tribunal insists for any pre- deposit even a part of the balance amount. This point, despite our careful reading of the impugned order, was not adjudicated. We think that this should have been done by the learned Tribunal. According to us, it is a failure of exercise of jurisdiction.
We, therefore, keep the impugned order in abeyance and we direct the learned Tribunal to decide the question of financial hardship as urged in the aforesaid application specifically. It is open to the appellant to place the application and other material, if not done already, to substantiate the aforesaid plea. The learned Tribunal will consider this and come to a conclusion on the financial hardship only. After such consideration, the learned Tribunal shall pass fresh order as the situation warrants without being influenced or swayed by its own decision on the aspect of prima facie case as well as our observations made in this judgment. This fresh exercise has to be completed within a period of six weeks from the date of a copy of this order.
The appeal is accordingly allowed to the extent indicated above. There will be no order as to costs.
C.E.A. NO.118 OF 2014 Since the issue involved in this appeal is identical to the one raised in the above appeal (C.E.A. No.117 of 2014), the aforesaid judgment will be applicable to this matter and hence the appeal is allowed in terms of the aforesaid judgment. There will be no order as to costs.
K.J. SENGUPTA, CJ M.S. RAMACHANDRA RAO, J 13.11.2014 bnr