JUDGMENT Rajeev Gupta, C.J. (Oral).-Sri P.R. Mullick, Advocate for the petitioners. Sri Arvind Vashistha, Asstt. Solicitor General for respondents 1 & 2. Sri Naresh Pant, Advocate for respondent no. 3. They are heard on admission. 2. The petitioners have filed this writ petition for the following relief : "1. It is most respectfully prayed that this Hon'ble High Court may be pleased to issue a writ, order or direction in the nature of certiorari quashing the order dated 21.12.2004 (Annexure-I), passed by respondent No.1, by virtue of which the appeal of the petitioner has been dismissed. 2. It is most respectfully prayed that this Hon'ble High Court may be pleased to issue a writ, order or direction in the nature of Mandamus restraining respondent No. 2 from realizing any duty or penalty demanded in the original adjudication order (Annexure-IV). 3. It is most respectfully prayed that this Hon'ble High Court may be pleased to issue a writ, order or direction as deemed fit and proper as per the circumstances of the case." 3. Sri Arvind Vashistha, the learned Assistant Solicitor General for respondents 1 and 2 has raised a. preliminary objection about the maintainability of the writ petition on the ground that the petitioners in this writ petition are re-agitating the same grounds, which were raised and decided in the petitioners' earlier writ petition No. 405 of 2004 (MIB), which came to be dismissed vide judgment dated 21.08.2004. . 4. The petitioners, in their earlier writ petition [Writ Petition No. 405 of 2004 (MIB)], sought the following reliefs: "(a) A writ, order or direction in the nature of writ of certiorari quashing the impugned Stay Order No. 352-356i2004-NB(A) dated 27.04.2004 in Appeal No. E/499-503/04-NB(A) passed by the respondent No.1 vide which respondent No.1 has imposed the condition of pre-deposit of Rs. 20 lakhs and 10 lakhs, respectively on petitioner No. 1 and 2 and instead direct respondent No.1 to entertain the appeals of the petitioners on merits without imposing any condition of pre-deposit on them. 20 lakhs and 10 lakhs, respectively on petitioner No. 1 and 2 and instead direct respondent No.1 to entertain the appeals of the petitioners on merits without imposing any condition of pre-deposit on them. (b) A writ, order or direction in the nature of writ •)f mandamus restraining respondent No. 2 from realizing the duty demanded and penalty imposed from the petitioners in any manner:, (c) Any other writ, order or direction as deemed fit in the case." S. Thus, in Writ Petition No. 405 of 2004 (M/B), the petitioners were seeking quashing of the order dated 27.04.2004 passed by Custom, Excise and Service Tax Appellate Tribunal, New Delhi in petitioners' Appeal Nos. E-499-503/04-NB (A) whereby the Tribunal directed petitioner No.1 Company and petitioner No.2 Company to make pre-deposit of Rs. 20 (Twenty) Lacs and Rs. 10 (Ten) Lacs respectively. In addition to the quashing of the above impugned order dated 27.04.2004, the petitioners were seeking a writ of mandamus also restraining respondent No.2 (Commissioner of Central Excise, Meerut) from realising the duty demanded and penalty imposed. 6. Writ Petition No. 405 of 2004 (M/B) was dismissed vide judgment dated 21.08.2004 and the Tribunal's impugned order dated 27.04.2004 was affirmed. A reference to paras 7, 8, 11, 13 and 14 of the said judgment is relevant to the present writ petition also: "7. Before we examine the order of the Tribunal, it would be better to see the exact language of the Section 35F of the Central Excise Act, 1944: "35F. A reference to paras 7, 8, 11, 13 and 14 of the said judgment is relevant to the present writ petition also: "7. Before we examine the order of the Tribunal, it would be better to see the exact language of the Section 35F of the Central Excise Act, 1944: "35F. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of the Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (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 interest of the revenue: Provided further that where an application is filed before the commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall where it is possible to do so, decide such application within thirty days from the date of its filing. The whole thrust being on the proviso, which arms the Tribunal with the discretion to dispense with the deposit being made by the appellants of the demanded duty and the penalty, learned counsel for the appellants/petitioners was at pains to point out the fallen financial health of the Companies. He firstly pointed out from the balance-sheet that the petitioner Companies had more liabilities than the assets. It was pointed out that in support of the said balance-sheets, the affidavits of the Chartered Accountants were filed on the record which remained unchallenged. He also invited our attention to the various notices issued against the petitioner Companies for payment of Income Tax, Trade Tax and other taxes and contended that the Companies were not in a position to pay as a pre-deposit, the amounts ordered by the Tribunal and that the Tribunal had not considered these matters at all. 8. He also invited our attention to the various notices issued against the petitioner Companies for payment of Income Tax, Trade Tax and other taxes and contended that the Companies were not in a position to pay as a pre-deposit, the amounts ordered by the Tribunal and that the Tribunal had not considered these matters at all. 8. When we look on the order of the Tribunal, it is apparent that the Tribunal had considered the aspect of undue hardship by refusing to attach credibility to the claim of the financial hardship on account of the Companies being hemorrhaged of its funds by none else than the Managing Directors. That is clear cut expression to be found in the paragraph 4. Not only this, but the Tribunal had also perused the records and found that the offences alleged against the Companies were grave and that there were clandestine production and clearance of bulbs and evasion of duty, for which clandestine and fake sale of goods and receipts from the sale, were shown to and from, the non-.existent parties. The criticism that the Tribunal had not at all considered this aspect cannot, therefore, be countenanced. In our opinion the Tribunal was wholly justified in denying the total dispensation of the pre-deposit of the demanded duty and the penalty. In fact, the Tribunal had given a relief of more than 50% of the liability limiting it to 20,00,000/- (Rupees Twenty Lacs only) in case of the first petitioner and Rs. 10,00,000/- (Rupees Ten lacs only) in case of the second petitioner. * * * * * * * * * * * * * * * * * * * * * * * * * * 11. The term 'undue hardship' is, however, not defined in any Law Dictionary. Reading the two words together the meaning would be 'unwarranted hardship'. Where, therefore, there appears to be a systematic effort to drain the coffers of the Company with a clear idea to enrich himself on the part of the Managing Director, the Tribunal would be justified in taking into consideration that aspect while holding that at least the petitioners' companies could not plead an 'undue hardship' since that hardship was not warranted. The financial debacle faced by the Companies would undoubtedly be relevant, but that by itself is no reason; where such financial debacle is a part of systematic design to drain the Company and in the process to enrich the Managing Director himself, the plea of 'undue hardship', would not be available. In this behalf, it is apparent from the order and the findings that the so called trading activity claimed by these companies was a mere facade as a careful and deep investigation suggested that five concerns with whom, the said trading activity was shown to have been done, did not exist at all at their given addresses. The said five concerns were (a) M/s Ambay Trading Co., B -53, Yamnotri Complex, Ghaziabad; (b) M/s Jagdamba Trading Co., 42, Yamnotri Complex, 1st Floor, Ambedkar Road, Ghaziabad; (c) M/s Raj Enterprises, Niwari Road, Modi Nagar, Ghaziabad; (d) M/s Agarwal Trading Centre, 1-310, Govind Puram, Ghaziabad and ( e) M/s K.P. Trading, Opp. Milk Dairy, Mohiuddinpur, Meerut (RUD No. 14-22). It becomes apparent from the order that the first such concern never dealt in the bulb, but that firm had shown sale and purchase only of iron and steel scraps in their trade tax return for 1997-98. There was no business transaction in the year 1998-99 and 1999-2000, and the registration of the company was also cancelled w.e.f. 09.06.1998. As regards the second concern, it was found that this concern had not filed any return. That concern was not found to be functioning at the given address and action for cancellation of their registration was initiated. This is apart from the fact that this concern when it was functioning used to deal with the machinery parts, sanitary goods and-hardware goods. The same is the story about the third concern, which was also not found to have any business activities at the given address. Identical is the story about the fourth and fifth concern. The notices sent to these concerns by the Department were also returned in the absence of any such addressee being there at the said addresses. As if this is not sufficient, it becomes apparent that some goods received were shown to have been received by. Identical is the story about the fourth and fifth concern. The notices sent to these concerns by the Department were also returned in the absence of any such addressee being there at the said addresses. As if this is not sufficient, it becomes apparent that some goods received were shown to have been received by. various transporters for the transport of goods, and the letters iss4ed to such transporters in order to ascertain the veracity of the goods received (in case of six such transporters), were returned undelivered by the postal authorities due to non availability of the addressees. When the registration number of the vehicles mentioned in the aforementioned goods received were checked, they were not found to be commercial transport carrier, but of mopeds, scooters, motor cycles, tractor trolleys, cars and Government vehicles, etc. Things do not stop there. In paragraph 3.8.1 of the order, it is pointed out that a cheque for Rs. 70.000/-(Seventy Thousand only) shown issued to M/s Ambey Trading Company, was actually reached the Managing Director Me. M. K. Goel on its encashment. So also a cheque of Rs. 60,000/-(Rupees Sixty Thousand only) 13. The first such judgment is by the Kerala High Court Rubicon Vs. Collector of Central Excise reported in 1989 (44) E.L.T. 401 (Kerala). This judgment was pressed into service in order to buttress the contention that even if there is an allegation of clandestine removal of the goods from the factory premises, that by itself would be no reason to refuse the discretion under the proviso 35F of the Central Excise Act. Heavy reliance was placed on the observations in paragraph 8, where Court has observed that even if there is an admitted due, yet the Appellate Authority can dispense with the duty and penalty, if insistence of such deposit will cause 'undue hardship' to the appellant. This was, however, not a case where there was a systematic siphoning of the funds for enriching the authorities, like Managing Director. We have already pointed out that the whole plea of financial hardship becomes suspicious once it is seen that there is a systematic activity to cause wrongful loss to the Companies and wrongful gain to the authorities, like Managing Director. We hastened to add that we are not using these two terms as they are used in the Criminal Law. We have already pointed out that the whole plea of financial hardship becomes suspicious once it is seen that there is a systematic activity to cause wrongful loss to the Companies and wrongful gain to the authorities, like Managing Director. We hastened to add that we are not using these two terms as they are used in the Criminal Law. However, there can be no dispute that in this case, it is proved that the money which should have gone to the coffers of the Companies, have not actually been received by the Companies; but have gone to the greedy pocket of the Managing Director. 14. In the aforementioned decision, a decision reported in 1985 (2) E.L.T 243 - U.P. Laminations Vs. Union of India, had been relied upon. So also a reference was made of a reported decision of Delhi High Court reported in 1987 (28) E.L.T. 61 Uptron Power tronics Vs. Collector of Central Excise. In support of his argument that there was no attempt on the part of the Tribunal to enquire financial difficulties of the petitioner Companies and, therefore, the order refusing to exercise discretion was wrong, the learned counsel very heavily relied upon these two decisions. We have no quarrel with these two decisions. However, it cannot be said that there was no enquiry into the financial status of the petitioner Companies. The Tribunal has undoubtedly taken into account the affidavits and had come to the conclusion that those, affidavits by themselves were not reliable in view of the proved irregularities in - financial transactions. We are, therefore, not impressed by the argument at all that there should have been counter filed on behalf of the department to the above said claims made through the affidavits of the Chartered Accountants. In short, we do not find any merits in this writ petition and would choose to dismiss the same. " 7. Sri Mullick, the learned counsel for the petitioners-tried to meet the above preliminary objection on the ground that as the petitioners' assets (plant and machinery) were seized by the Excise Authorities and the value of those assets was more than the amount of pre-deposit, the petitioners have filed this second writ petition. 8. " 7. Sri Mullick, the learned counsel for the petitioners-tried to meet the above preliminary objection on the ground that as the petitioners' assets (plant and machinery) were seized by the Excise Authorities and the value of those assets was more than the amount of pre-deposit, the petitioners have filed this second writ petition. 8. It is not in dispute that the petitioners assets (plant and machinery) were seized by the Excise Authorities on 03.08.2004 i.e. much before the dismissal of the petitioners' earlier Writ Petition No. 405 of 2004 (M/B) vide judgment dated 21.08.2004 and in fact, the seizure of the petitioners' assets was brought on record in Writ Petition No. 405 of 2004 (M/B) by filing supplementary affidavit dated 10.08.2004. The petitioners had. also filed CLMA No. 4453 of 2004 in their earlier writ petition for the following reliefs: "(a) direct the respondents to release all the stocks and plants and machinery which have been attached by them on 03.08.2004 under Panchnama (Annexure P16) drawn by Superintendent (Preventive) of Central Excise, Dehradun; and. (b) restrain the respondents to take any coercive action with regard to movable/immovable property of the petitioners. ( c) pass any other order( s) as deemed fit in the case." 9. Thus, it is apparent that the petitioners' challenge to the Tribunal's order dated 27.04.2004 directing the petitioner No. 1 Company ,and petitioner No. 2 Company to make pre-deposit of Rs. 20 Lacs and Rs. 10 Lacs respectively in their appeals failed vide judgment dated 21.08.2004 passed in the petitioners' earlier Writ Petition No. 405 of 2004 (M/B). The fact of seizure of the petitioners' assets by the Excise Authorities on 03.08.2004 was also brought on record in Writ Petition No. 405 of 2004 (M/B) by way of supplementary affidavit of the petitioners dated 10.08.2004. 10. In the present writ petition [WP. No. 630 of 2005 (M/B)], the petitioners are seeking quashing of the 1fibunal's order dated 21.12.2004 whereby petitioners' application seeking restoration of their appeals, dismissed vide order dated 07.10.2004 for non-compliance of the Tribunal's, order dated 27.04.2004 (directing the petitioners to make pre-deposits in their appeals), was dismissed. 11. The Tribunal's order dated 27.04.2004 directing the petitioners to make pre-deposit in their appeals was affirmed by the High Court vide judgment dated 21.08.2004 passed in Writ Petition No. 405 of 2004 (M/B). 11. The Tribunal's order dated 27.04.2004 directing the petitioners to make pre-deposit in their appeals was affirmed by the High Court vide judgment dated 21.08.2004 passed in Writ Petition No. 405 of 2004 (M/B). In spite of the dismissal of the writ petition, the petitioners did not make the requisite pre-deposit in their appeals. As such, the Tribunal was left with no other option but to dismiss the petitioners' appeals for non-compliance of provisions of Section 35-F of the Central Excise Act. The tribunal, therefore, dismissed the petitioners' appeals vide order dated 07.10.2004. In fact, the Tribunal's order dated 07.10.2004 is only a consequential order resulting from the petitioners' non-compliance of the Tribunal's order dated 27.04.2004 which was affirmed in Writ Petition No. 405 of 2004 (M/B). As there was no convincing material before the Tribunal justifying any modification of the order dated 27.04.2004 and restoration of the petitioners' appeals dismissed on 07.10.2004, the Tribunal dismissed the petitioners' application for restoration of their appeals vide impugned order dated 21.12.2004. 12. True, the petitioners in the present writ petition are seeking quashing of the Tribunal's order dated 21.12.2004, whereas in their earlier writ petition [WP. No. 405 of 2004 (M/B)] quashing of the Tribunal's order dated 27.04.2004 was sought. As such, the present writ petition, strictly speaking, is very much maintainable. Nevertheless, there is not much of scope for interference as the dismissal of the petitioners' appeals was consequential to the petitioners' act of non-compliance of the Tribunal's order dated 27.04.2004 which stood affirmed in the petitioners earlier Writ Petition No. 405 of 2004 (M/B) vide judgment dated 21.08.2004. The above-quoted paras of the said judgment dated 21.08.2004 reveal that the petitioners' main ground about their 'financial hardship' was repelled for cogent and sound reasons. 13. For the foregoing reasons, we do not find any infirmity in the Tribunal's impugned order dated 21.12.2004 whereby petitioners' application seeking restoration of their appeals, was dismissed. 14. The writ petition, therefore, is liable to be dismissed and is hereby dismissed summarily. 15. Consequently, CLMA No. 3370 of 2005 also stands dismissed.