D. P. Wadhawa, J. ( 1 ). PETITIONER, a public limited company, seeks a writ of certiorari or any other appropriate writ, order of direction for quashing the order dated 13 December 1993 of the Customs, Excise and Gold (Control) Appellate Tribunal (The `cegat for short) and seeks a further direction to CEGAT to hear and dispose of the appeal filed by the petitioner without insisting on any pre-deposit of the duty of the excise under the provisions of the Central Excises and Salt Act, 1944 (for short `the Act ). ( 2 ) AGAINST an order dated 19 March 1993 passed by the Collector of Central Excise Baroda, the petitioner filed an appeal before the CEGAT and also filed an application under section 35f seeking stay of the deposit of the duty as well as the penalty. The Collector by his order assessed the duty payable by the petitioner at over Rs. 42. 39 lakhs and also imposed a penalty of Rs. 30 Lakhs on the petitioner. The CEGAT by the impugned order directed the petitioner to deposit whole of the duty of the excise as assessed by the Collector within 12 weeks from 3 December 1993 and stayed the deposit of penalty amount. ( 3 ) UNDER section 35f of the Act, the person desirous of appealing against decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied. However, a discretion has been conferred on the Appellate Authority by the proviso to this section, which is as under : "provided that where in any particular case, the Collector (Appeals) or the Appellate Tribunal is opinion of that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. " ( 4 ) THE question that arises before us for consideration is : if the impugned order of the Collector demanding payment of duty and penalty would cause "undue hardship" to the petitioner, and if the CEGAT decides to dispense with such deposit, what conditions should be imposed on the person concerned so as to safeguards the interests of the revenue, and whether in the present case the CEGAT has exercised its discretion within the jurisdiction conferred upon it ? ( 5 ) THE petitioner is engaged in manufacture of certain bulk drugs and in the process of manufacture intermediate products are obtained which are captively consumed. Contention of the petitioner before the CEGAT was that these inprocessed materials in the state in which these were produced were crude, impure and instable and they were not isolated from the process in the manufacture of refinement and standardization which were captively consumed for manufacture of bulk drugs in the state in which they arose. Petitioner said these products were not marketable and not known to the trade as "goods". This was controverted by the counsel appearing for the department who said that all these aspects were duly considered by the Collector who found that some others were even imported. Considering all these factors and after examining the order of the Collector, the CEGAT was of the view that various issues which arose in the appeal, including the plea that the show cause notice which led to passing of the order by the Collector was time barred, would require examination at the time of hearing, and having regard to the facts and circumstances of the case the CEGAT was of the opinion that the petitioner did not have a strong prima facie case. The CEGAT, therefore, passed the impugned order directing the petitioner to deposit the duty, but stayed the penalty. ( 6 ) MR. Jaitley, learned counsel for the petitioner, submitted that CEGAT did not exercise the discretion properly and that it did not examine the question of undue hardship in its proper perspective. Reference was also made to some other decision of the Collector of Central Excise, Baroda, dated 10 September 1991 wherein the Collector had held that a unprocessed product chemically named "dzaminobutanol" was not marketable product and, thus, not liable to excise duty. Reference was also made to some other decision of the Collector of Central Excise, Baroda, dated 10 September 1991 wherein the Collector had held that a unprocessed product chemically named "dzaminobutanol" was not marketable product and, thus, not liable to excise duty. We do not think this order of the Collector has any relevance to the present case as the products here are different. ( 7 ) MR. Jaitley said that this is a fit case where this Court should lay proper guidelines as to inform the CEGAT to exercise its discretion under the proviso to section 35f of the Act. It was also submitted that demand of deposit of duty would cause enormous financial hardship of a great magnitude to the petitioner inasmuch as its liquidity position was weak. It was submitted that due to smuggling/dumping of drugs and medicines from China at below cost prices had eroded the profitability of the petitioner and of the drug industry. It was also submitted that there were demands raised by the Ministry of Chemical and Fertilizer towards drug price equalization account and other demands that of income-tax, etc. running into lakhs of rupees which were shown in the balance sheet of the petitioner. It was, thus, submitted that any order of pre-deposit of duty would cause financial hardship to the petitioner. ( 8 ) IT appears to us that financial hardship was never pleaded before the CEGAT. In the Assistant Collector of Central Excise, West Bengal V. Dunlop India Ltd. and others, 1985 (19) ELT 22 (SC), the court expressed anguish that some courts of law appeared to have developed an unwarranted tendency to grant interim orders - interim orders with a great potential for public mischief - for the mere asking. The court then observed as under : @subpara = "even assuming that the company had established a prima facie case, about which we do not express any opinion, we do not think it was sufficient justification for granting the interim orders as was done by the High Court. There was no question of any balance of convenience was certainly in favour of respondent-Company. The balance of convenience was certainly in favour of Govt. of India. Governments are not run on mere Bank Guarantees. Liquid cash is necessary for the running of a Governments as indeed any other enterprise. There was no question of any balance of convenience was certainly in favour of respondent-Company. The balance of convenience was certainly in favour of Govt. of India. Governments are not run on mere Bank Guarantees. Liquid cash is necessary for the running of a Governments as indeed any other enterprise. We consider that where matters of public revenue are concerned, it is of utmost importance to realise that interim orders ought not be granted merely because a prima facie case has been shown. More is required. The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the interest. We are very sorry to remark that these considerations have not been borne in mind by the High Court and interim order of this magnitude had been granted for the mere asking. " IN another case Vijay Prakash D. Mehta/jawahar D. Mehta Vs. Collector of Customs (Preventive) Bombay, JT 1988 (3) SC 435, the court said that right to appeal was neither an absolute right nor an ingredient of natural justice and that the right to appeal was statutory right and it could be circumscribed by the conditions in the grant. ( 9 ) UNDER section 35-F, deposit of duty and penalty is a pre-condition for the appeal to be heard. Exception is, however, provided where deposit of duty and/or penalty would cause undue hardship to the appellant. It has been held that for seeking discretionary relief under the proviso to section 35f the appellant must first show a prima facie case and then that requiring him to deposit the duty and penalty would cause an unwarranted or excessive hardship. "undue" is used to describe something that is greater or more extreme than is wanted, expected, or thought to be reasonable (Collins Cobuild English Language Discretionary ). That is the ordinary meaning of the expression "undue". Mere causing hardship is not enough. There will be always a liquidity problem when a person is asked to deposit the duty and penalty and it will certainly cause him hardship in his business. But then hardship is not enough. It has to be "undue hardship". No straight jacket formula can be laid as to when it could be said that demand of duty and penalty would cause undue hardship to the person. But then hardship is not enough. It has to be "undue hardship". No straight jacket formula can be laid as to when it could be said that demand of duty and penalty would cause undue hardship to the person. Each case has to be judged on its own merits. The exercise of discretion, however, has not be arbitrary. It is, therefore difficult to formulate the guidelines as to when it could be said that condition of pre-deposit of duty and penalty would cause undue hardship. ( 10 ) IN the present case, the respondents have brought on record a documents showing that the petitioner is a part of the pharmaceutical business group which has jointly promoted five leading companies turnover exceeds Rs. 300 crores. The CEGAT has held that the petitioner had no prima facie case as well. We do not find that the CEGAT exercised its discretion wrongly, and that there is no error in the impugned order for us to interfere. This petition is, therefore, dismissed.