Arijit Pasayat ( 1 ) COMMON order passed by the Customs. Excise and Gold (Control) Appellate Tribunal, New Delhi (in short, the CEGAT) disposing of applications for waiver of pre-deposit and stay of recovery of duly confirmed on each of I he applicants for entertaining appeals Filed before it is the subject matter of challenge in these two petitions. Applications were fied under Section 35f of the Central Excise Act, 1944 (in short the Act ). Our order shall govern each of the writ petitions. Petitioners are manufacturing bars, rods, angles, joist channels wire rods, etc falling under Chapters 72 and 73 of the Central Excise Tariff Act 1985 (in short, Tariff Act) and availing the benefit of exemption notification No. 202/88 dated 20. 5. 19x8 Penalties were imposed for contravention of the Central Excise Rules, 1944 (in short, the Rules ). In case of petitioner-Usha Udyog-duty of Rs. 74,87,767. 35 and a penalty of Rs. 20 lakhs was imposed. In respect of petitioner-RHL Profiles duly of Rs. 92,34,305. 00 and a penalty of Rs. 25 lakhs was imposed. Such impositions. were levied on the basis of adjudication orders. Central Excise officials visited the factory premises of petitioner Usha Udyog and on verification of record and conducting enquiries, it was observed that the said petitioner was purchasing rolling materials from local Kaharis and was clearing the goods without payment of duly while availing the benefit of exemption notification. Statement of several suppliers were recorded. Show cause notices were issued alleging that the benefit of exemption notification No. 202/88 dated 20. 5. 88 was not applicable to the petitioner, since exemption was admissible only to the final products described in column 3 of the table to the notification. Such mis-declaration constituted contravention of Rules, 174. 52a, 17g and 9 of the Rules. Notices were issued to the petitioner to show cause as to why Central Excise Duty from 1. 8. 90 to 28. 2. 94 be not demanded and penally should not be imposed. It was indicated that extended period available under Section 11-A of the Act was applicable. On a consideration of the reply, Commissioner confirmed the demand and imposed duty and a penalty of Rs. 7487767. 35 and Rs. 20 lakhs respectively. ( 2 ) IN the case of petitioner RHL Profiles Ltd, similar was fad situation and duly of Rs. 92,34,305. 40 and penalty of Rs. On a consideration of the reply, Commissioner confirmed the demand and imposed duty and a penalty of Rs. 7487767. 35 and Rs. 20 lakhs respectively. ( 2 ) IN the case of petitioner RHL Profiles Ltd, similar was fad situation and duly of Rs. 92,34,305. 40 and penalty of Rs. 25 lakhs was imposed. The said orders in respect of the two petitioners are subject matter of challenge before CEGAT. ( 3 ) PRAYER was made for waiver of pre-deposit and slay of the recovery of duly on several grounds. Primarily, it was submitted that the conclusions arrived at about misdeclaration and suppression run contrary to the material on record. If the materials and evidence are considered in their proper perspective, the demands would not stand. Additionally, it was pleaded that financial conditions of the petitioners would not permit liquidation of even a part of the demand. CEGAT directed deposit of Rs. 50 lakhs and Rs. 60 lakhs respectively. It was observed thai a prima facie case ol levies was made out and plea of financial stringency was not established. ( 4 ) LEARNED counsel for petitioners reiterated their stand before the CEGAT. It was submitted that the ingredients requisite for grant of stay i. e. prima facie case, balance of convenience and irreparable loss existed. Direction of CEGAT to deposit Rs. 50 lakhs and Rs. 60 lakhs virtually amounts to denial of forum and right of appeal. It was submitted that out of several statements recorded nothing adverse to the petitioner could be made out. Even the statements recorded did not make out a case that the petitioners were purchasing scrap materials. Further the officers who passed the order had no jurisdiction. It is also submitted that the amounts directed to be deposited are extremely harsh and there has been closure of business, so far as Usha Ydyog is concerned from May, 1999 ( 5 ) LEARNED counsel for the respondent, however, submits that by making mis-declaration and by suppression of material facts benefits have been availed. Petitioners had declared that they were purchasing ingots bars, etc and other rolling materials (duly paid) which are then cut into required size and rolled, but it had been found that what had actually been received was nothing but old and used scrap from worn out and old automobile and railway material parts. Petitioners had declared that they were purchasing ingots bars, etc and other rolling materials (duly paid) which are then cut into required size and rolled, but it had been found that what had actually been received was nothing but old and used scrap from worn out and old automobile and railway material parts. Considering the huge suppressions detected and magnitude of mis-declarations, the amounts directed to be deposited cannot be said to be unreasonable. CEGAT found that it could be prima facie said that the petitioners have not furnished vital information and were not eligible for benefit ol the notification. So far as the financial conditions arc concerned it was observed that the same was not as bleak as was pleaded. Financial statements of Usha Udyog for the period ending 31. 3. 97 reflect sales turnover of over Rs. 6. 78 crores and other income of approximately Rs. 15 lakhs. Further, the financial statements for the year ending 31. 3. 97 reflects a balance of Rs. 2. 30 crores brought forward from the previous years. In the case of RHL Profiles, the financial statements for the same period shows a sales turnover of over Rs. 24 crores and other income of approx. Rs. 2. 74 crores. In addition to this has been a profit brought forward from the last account. Prayer for waiver of pre-deposit stipulation was not accepted in the aforesaid background. ( 6 ) REQUIREMENT of deposit of the amount in dispute is a condition precedent for entertaining the appeal and not for filing the appeal. Failure to deposit the amount in question would render the appeal incompetent. While considering an application for grant of stay, the concerned authority has to, inter alia, consider the following aspects: A) Whether there is prima facie case in favour of the assessee. b) the balance of convenience qua deposit or otherwise. c) Irreparable loss, it any, to be caused in case stay is not granted. d) Safeguarding of public interest. In the Asstt Controller Central Excise West Bengal v. Dunlop [1985]19 ELT 22, =air 19h5. SC 330) the Apex Court held that normally four factors for grant of slay order should be kept in view i. e. prima facie case, which by itself is not enough, balance of convenience, possibility of irreparable injury and safeguarding the public interest. ( 7 ) RIGHT of Appeal is a creation of statute. SC 330) the Apex Court held that normally four factors for grant of slay order should be kept in view i. e. prima facie case, which by itself is not enough, balance of convenience, possibility of irreparable injury and safeguarding the public interest. ( 7 ) RIGHT of Appeal is a creation of statute. But in exercise of such right, there is no inherent or constitutional right to file an appeal. While granting such right, legislature can impose any condition. It was observed in Anant Mills Co. Ltd. v. Stale of Gujarat (AIR 1976) SC 1234) and Stair of Bombay v. Mis Supreme General Films Exchange Ltd (AIR I960 SC 980), that legislature ran. while granting right of appeal, lay down a condition for deposit of lax as it is creation of statute. Legislature can also put restriction on il so as to curtail it. There is nothing wrong if under same statute, a right of Appeal is given and then some restrictions are put over il. Right to appeal is a substantive right and not a mere matter of procedure. But such right is neither an absolute right nor an ingredient of natural justice. It must he conferred by statute and can he exercised only as permitted by slalule. There is no feller in imposing conditions about deposit of fees etc. There arc many fiscal statutes like Central Excise and Sail Act. Customs Acl, Sales tax Acts of various Stales and many other similar statutes, which mandate deposit of disputed amount as a condition precedent lor entertaining appeal. Condition of deposit of court fee in many cases merely regulates exercise of righl of appeal. It is open to legislature to impose an accompanying liability upon a party upon whom legal right is conferred or to prescribe conditions for exercise. of right. Any requirement for discharge of that liability or fulfillment of that condition, in case the parly concerned seeks to avail the said right, is a valid piece of legislation and Article 14 has no application. Observations in the case ol Hannah Cohen v. Beneficial Industial (1949) 337 US 541) lend some support to the view we have taken. Headnote 10 which is based upon the observations in the body of the judgment reads as follows: "10. Observations in the case ol Hannah Cohen v. Beneficial Industial (1949) 337 US 541) lend some support to the view we have taken. Headnote 10 which is based upon the observations in the body of the judgment reads as follows: "10. A stale statute which requires that in a steek-holder s derivative action a Plaintiff who owns less than 5 per cent of the Defendant corporation s outstanding share or shares having market value not exceeding $ 50,000 give security lor the reasonable expenses including counsel fee, incurred by the corporation and by other parlies Defendant and which makes the Plaintiff liable for such expenses if he does not make good his claims, and subjects the amount of security to increase if the progress of the litigation reveals that it is inadequate or to decrease if it is proved to he excessive, does not violate the contract clause or the due process clause or the equal protection clause of the Federal Constitution". ( 8 ) IT has to be noted that under proviso to Section 30 (1) of Workmen s Compensation Act, 1923, no appeal by an employer shall 1ie in respect of demand under clause (a) of said sub-section, unless memorandum of Appeal is accompanied by a certificate by Commissioner to the effect that appellant has deposited with him the amount payable under order appealed against. In D. Narayanan Nain v. Union of India (1990) 2 LLJ 500) it was held that provision which requires deposit of fee before resorting to appeal cannot be said to be illegal and the inconvenience caused to appellant to make payment is no reason to strike down said statutory provisions. It was observed by Punjab and Haryana High Court in Piara Singh v. Commissioner, Workmen s Compensation, Patiala (1987 LIC 878) that simple fact that compensation awarded has to be deposited before an appeal can be entertain would not furnish ground to entertain writ petition by-passing statutory remedy for appeal. In Nathamani Gounder v. State of Tamil Nudu (1986) 2 LLJ 423 ), it was observed that if the legislature provides for no appeal in a particular case, or provides for an appeal subject to certain conditions it is a piece of proper legislation. Even if a statute denied right of appeal, statute cannot be said to be had legislation. In Nathamani Gounder v. State of Tamil Nudu (1986) 2 LLJ 423 ), it was observed that if the legislature provides for no appeal in a particular case, or provides for an appeal subject to certain conditions it is a piece of proper legislation. Even if a statute denied right of appeal, statute cannot be said to be had legislation. Reference to the other statutes where conditions are imposed for entertaining an appeal lias been made for purpose of showing that even where apparently more onerous requirements and/or conditions have been imposed that per se has been held to be no ground for declaration of a provision ultra vires. ( 9 ) IT is to be noted that the prescribed authority is conferred with discretion to dispense with pro-deposit conditionally or in full or in part. Such discretion is governed by a maxim "discretio est diseernere per legon quid sit justum" (Discretion consists in knowing what is just in law ). Discretion in general is the discernment of what is right and proper. It denotes knowledge and prudence, thai discernment which enables a person to judge critically of what is correct and proper united with caution, to discern between falsity and truth, between shadow and substance, between equity and colourable glosses and pretences and not to do according to the will and private affections or illwill. It has to be done according to the rules of reasons and justice, not according to private opinion. It has to he done according to law and not humour. It is not be arbitrary vague and fanciful but legal and regular. In the case at hand CEGAT made all elaborate analysis of factual stands of Petitioner to the extent desirable while dealing with an application for slay. ll has observed that prima facie what appears from record that nature of inputs was scrap and not any of the inputs specified in the table to the notification under consideration. Further duty burden had not been discharged in respect of inputs supplied. Whether this view shall finally be retained shall be adjudicated at the time of final disposal. So CEC1at was justified in holding that a prima facie case was not made out. As regards financial hardship. CEGAT s findings have been discussed above. Further duty burden had not been discharged in respect of inputs supplied. Whether this view shall finally be retained shall be adjudicated at the time of final disposal. So CEC1at was justified in holding that a prima facie case was not made out. As regards financial hardship. CEGAT s findings have been discussed above. No specific reason has been indicated as to on what account operations of Usha Ydyog have been suspended since may, 1999 as claimed. In any event the impugned order of CEGAT was passed on 26. 5. 199s. It suffer from no inherent fallibility to warrant interference. ( 10 ) SECTION 35f of the Act deals with deposit pending appeal of duly demanded or penalty levied. Proviso deals with power of appellate authority to dispense with such deposit if it is of the opinion that deposit would cause undue hardship, imposing such conditions as would safeguard interest of revenue. Assessee. as to establish that undue hardship would be caused to il and while deciding the stay application the authority has to keep in view two aspects i. e. (a) form an opinion lhat deposit would cause undue hardship to the assessee and (b) safeguard interest of revenue if il considers dispensing with deposit desirable, by stipulating conditions. "opinion" means something more than mere retaining of gossip or of hearsay, it means judgment of belief, thai is belief or a conviction resulting from what one thinks on a particular question. If a man is to form an opinion, and his opinion is to govern, he must form it himself on such reasons and grounds as seem good to him (Per Lord Brawell in Allcroft v. London (Bishop) 1891 RC 666. Opinion is judgment of belief based on grounds short of proof. "hardship" connotes something harsher and more severe than trifling inconvenience, and negligible loss of profit or temporary loss of a commercial opportunity. Language used in Section 35-F is not merely "hardship". It is undue hardship. For a hardship to become "undue" il must be shown lhat the particular burden which is required to be observed or perlotmed is out of proportion to the nature of the requirement itself and the benefit which the applicant would derive from compliance with il. Language used in Section 35-F is not merely "hardship". It is undue hardship. For a hardship to become "undue" il must be shown lhat the particular burden which is required to be observed or perlotmed is out of proportion to the nature of the requirement itself and the benefit which the applicant would derive from compliance with il. ( 11 ) ON a consideration of the materials on record we do not consider this to he a fit case where any interference with the order passed by the CEGAT is called for. Accordingly, the amounts directed to be paid by il need no modification. However, lime fixed by the CEGAT has elapsed. In case the petitioners deposit the amounts directed to be paid by it, by the end of September. 2000, the appeals shall be entertained for disposal on merits, il they are otherwise fee from deled. Writ Petitions are accordingly disposed of.