JUDGMENT SONIA GOKANI 1. Challenge in this petition is to the order of Customs Excise & Service Tax Appellate Tribunal ('CESTATE' in short) on dated 28th February 2011, directing the petitioner – firm to pre-deposit sum of Rs. 65.00 Lakh, being 50% of the duty amount within 12 weeks of the date of this order. 2. The facts which led to the filing of the present petitioner need to be reproduced in capsulized manner at this stage. 3. Petitioner is a partnership firm, which is engaged in the manufacturing and selling of flame proof and weather proof electrical equipments is located at Silvasa. On the basis of intelligence gathered by the Directorate General of Central Excise Tribunal (“DGCET” for short) of alleged indulgence of the petitioner, in clandestine removal of finished goods under the sale invoices of two units, namely, M/s. Fenil Control Gears and M/s. EXEC, search was carried out at the factory premises of the petitioner as well as at the residential premises of the partners as also at the units allegedly used as conduits in carrying out illegal activities and also at the premise of M/s. Megha Parcel Services (Transporters ). 4. On the basis thereof, a show cause notice was issued to the petitioner-firm on 17th August, 2008. On due adjudication of the said show cause notice, Order-in-Original was passed by the Commissioner, Central Excise on dated 26th October, 2009, confirming the demand of central excise duty to the tune of Rs.1,60,43,273/- (One Crores sixty lacs forty three thousand two hundred seventy three only) and equal amount of interest and penalty on the firm and penalty of Rs.10.00 Lakhs on each partner, on confirming large scale evasion of central excise duty on excisable goods. 5. This order of Commissioner, Central Excise dated 17th October 2008 was challenged before the CESTAT by preferring four appeals being appeal No. E-125 to 128 of 2010 by the petitioner-firm and all the partners, wherein an application was moved with a request to waive requirement of pre-deposit of duty of Rs.1,60,43,273/- and interest and penalty of identical amount and other penalties against the Directors . The Tribunal did not find prima facie case of the petitioner to allow stay application unconditionally. It directed to deposit 50% of the duty amount by taking note of the fact that petitioner had already deposited the amount of Rs. The Tribunal did not find prima facie case of the petitioner to allow stay application unconditionally. It directed to deposit 50% of the duty amount by taking note of the fact that petitioner had already deposited the amount of Rs. 14.50 Lakhs during the course of investigation. Thus, Tribunal directed petitioner –firm to deposit total sum of Rs.80.00 Lakhs being 50% of the duty amount and with 14.50 Lakhs already having been deposited by the petitioner, remaining amount of Rs.65.00 Lakhs (which ought to have been Rs.65.50 Lakhs considering the total sum of Rs.80.00 Lakhs) were directed to be deposited within a period of 12 weeks from the date of this order. The recovery of total amount of duty, interest and penalty had been stayed during the pendency of appeal, subject to the compliance of direction of deposit of amount of Rs.65.00 Lakhs as mentioned hereinabove. 6. The impugned order of the Tribunal is under challenge before this Court by way of present petition, seeking relief in the following terms : (a) Please to dispense with condition of pre-deposit of duty of Rs.65 lakhs as directed by the Hon'ble Tribunal against the petitioner No.1 i.e. M/s. Explosion Proof Electrical Control, by modifying/setting aside the order dated 28.2.2011 passed by the Customs Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad passed in Application No. E/S/127 to 130 of 2010 in Appeal No. E/125 to 128 of 2010. (b) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant stay against any further implementation and operation of the impugned order dated 28.2.2011 passed by Customs Excise & Service Tax Appellate Tribunal in Application No. E/S/127 to 130 of 2010 in Appeal No. E/125 to 128 of 2010. (c) Pass any other or further orders which this Hon'ble Court may deem fit and proper in favour of the petitioner in the interest of justice. 7. Learned counsel Mr.Mishra appearing for the petitioner fervently argued before this Court that there was acute financial hardship suffered by the petitioner-firm. The Tribunal had simply disregarded that aspect while considering request. The second challenge is to the calculation made by the Commissioner, Central Excise in the order-in-original. It has been forcefully submitted that many of the vouchers are calculated more than once, which resulted in inflating the total demand of duty. The Tribunal had simply disregarded that aspect while considering request. The second challenge is to the calculation made by the Commissioner, Central Excise in the order-in-original. It has been forcefully submitted that many of the vouchers are calculated more than once, which resulted in inflating the total demand of duty. He also raised the contentions that during the search conducted of various premises of the firm, all the material documents have been seized by the department. Despite repeated requests, no copy of such seized documents has been furnished, so as to make it possible for the petitioner to defend its case before adjudicating authorities. He also objected to the manner in which his application for stay of recovery, pending the appeal has been dealt with. 8. Per contra, Mr.Varun Patel learned counsel for the department urged this Court that this is a gross case of clandestine manufacturing and sale by the petitioner – firm using two other proprietary firms as conduits in large scale illegality committed from the year 2002-03 . He also further urged the Court that Tribunal has aptly dealt with all the aspects raised before it and concluded correctly that there was no financial hardship. Moreover, as also mentioned in the affidavit in reply by the department, the unaccounted income earned by way of illegal activities could not have found place in the books of account of the petitioner. Therefore, Tribunal rightly did not consider this request of the petitioner. He also attempted to raise the contention before this Court painting out at the Order-in-Original that the Commissioner has extensively noted and held to have received proof of such illegal activities. Reliance is placed on the judgment of Apex Court in case of Benara Valves Ltd. and others vs. Commissioner of Central Excise reported in 2006 (13) SCC 347 and also reported in 256 ELT 701 of Punjab & Harriyana to substantiate his submissions. 9. On having heard learned counsel Mr. A.K. Mishra appearing for the petitioner extensively and learned counsel Mr. Varun Patel for the department and on duly considering the materials placed before this Court, this petition deserves dismissal for the reasons to be followed hereinafter. 10. At the outset, what has been essentially objected to by the learned counsel for the petitioner is the fact that the Tribunal has pre-judged the issue of clandestine removal while deciding the requirements of pre-deposit. 11. 10. At the outset, what has been essentially objected to by the learned counsel for the petitioner is the fact that the Tribunal has pre-judged the issue of clandestine removal while deciding the requirements of pre-deposit. 11. Twin requirements at the time of directing pre-deposits u/s. 35(f) as laid down by the Apex Court in case of Benara Valves Ltd. and others (Supra) are (a) undue financial hardship of the party (b) safeguarding interest of Revenue. It has been all along emphasized from Counsel of the Revenue that Tribunal while considering the request of petitioner to forgo direction of predeposit pending the appeal has scrupulously considered these two requirements. As can be noted from the order of Tribunal, it in terms has held that neither the financial hardship was pleaded before it nor was any record placed before it to reflect upon poor financial condition of the petitioner. 12. However, what requires a mention at this stage is that while rejecting this plea of financial hardship what has also weighed with the Tribunal while passing its impugned order is that there is overwhelming evidence against the petitioner and there is no prima facie case existing. Thus, neither was the existence of prima facie case nor was the presence of twin requirements as laid down by the Apex Court these led it to deny the request of waiver of pre-deposit. 13. Before this Court, an attempt is made to point out from the record produced, tax audit and annual report of the year 2009-10, and from annexure Form 3CD that for the assessment year 2010-11, a gross profit of the current year of the petitioner – firm is Rs.55,67,096/- and in the preceding year, it was Rs.45,60,805/-. It is no where complained nor pointed out from the petitioner's side either in oral submission or by way of any documentary evidence that the petitioner – company has become sick or needed to resort to fund for pumping life for working of the firm. On the contrary, it is pointed out from evidence that its financial condition is getting stronger every year. 14. On the contrary, it is pointed out from evidence that its financial condition is getting stronger every year. 14. The Tribunal while considering the petitioner's case of financial hardship on the basis of its balance-sheet and other statutory records observed as under : “Further, though the applicant has now placed on record the balance sheet, we are of the view that as the clandestine activities are never reflected in statutory records, no real view about the financial condition of the appellants can be arrived at based upon the said balance sheet. “ While we are not inclined to interfere with the ultimate decision of the Tribunal, the above-mentioned observations need a brief mention. The case of the petitioner is that there was no clandestine removal of goods and the adjudicating authority erred in coming to the contrary conclusions. This issue the petitioners desire to pursue in appeal. If the request of the petitioners for waiver/reduction of pre-deposit is decided on the basis that this being a case of clandestine removal, the balance sheet of the petitioners would not reflect the correct figure, it would amount to denying to the petitioners a right to appeal without adjudicating question of alleged clandestine removal. 15. With this note of disapproval of reasons given by the CESTAT, when the request of petitioner is examined for interfering with the impugned order of Tribunal, from the evidence brought on record before this Court and materials produced for consideration as well as on due regard to the affidavit filed in this regard, this Court is of the firm opinion that no interference is warranted in either the conclusion of the requirement of pre-deposit or on the direction of deposit of additional sum of Rs. 65.00 Lakhs, in as much as the petitioner has completely failed to make out any case for such a relaxation. At the cost of reiteration, it is required to be mentioned that as rightly pointed out by the learned counsel for the revenue, considering the demand of duty, interest and penalty to the firm and to the partners, the total amount comes to Rs.3.50 Crores nearly. In light of this figure direction of CESTAT of depositing Rs.80.00 Lakhs would amount to directing deposit of only 20% of the total amount confirmed by the order of the Commissioner of Central Excise. In light of this figure direction of CESTAT of depositing Rs.80.00 Lakhs would amount to directing deposit of only 20% of the total amount confirmed by the order of the Commissioner of Central Excise. The law on the aspect of financial hardship is made quite clear time and again. As discussed hereinbefore while dealing with the application of any litigation u/s. 35(f) of the Central Excise Act for dispensing with the condition of pre-deposit of duty, penalty, etc. consideration would be essentially undue hardship to the petitioner and safeguard of interest of the Revenue. As undue financial hardship, would be the matter known to the petitioner only, it would be required of the petitioner to bring forth requisite evidence for necessary consideration. As had been noted, there was no material presented before the Tribunal and nor the ones, which were produced were found to contain sufficiency of material so as to permit complete waiver of the pre-deposits. Before this Court, also as mentioned hereinbefore, papers of tax audit and tax reports as well as account of petitioner-firm do not in any manner are indicative of poor financial condition of the firm. At no point of time the Company has experienced such a situation leading the Court to conclude its financial condition so as to allow the request of either complete waiver or reduce the amount of pre-deposit, as directed by the CESTAT. 16. The Apex Court in case of Benara Valves Ltd. and others vs. Commissioner of Central Excise (Supra) carved out these principles for staying or dispensing with pre-deposit thus:- 6. Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially. 7. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. Vs. Amalendu Das and Ors. ( AIR 1984 SC 653 ) and M/s. Samarias Trading Co.Pvt.Ltd. Vs. Ors. ( AIR 1985 SC 61 ) and Assistant Collector of Central Excise V. Dunlop India Ltd. ( AIR 1985 SC 330 ). 8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. Vs. Amalendu Das and Ors. ( AIR 1984 SC 653 ) and M/s. Samarias Trading Co.Pvt.Ltd. Vs. Ors. ( AIR 1985 SC 61 ) and Assistant Collector of Central Excise V. Dunlop India Ltd. ( AIR 1985 SC 330 ). 8. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequence flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens' faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Silliguri Municipality and Dunlop India cases (Supra) without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows :- “35F. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Silliguri Municipality and Dunlop India cases (Supra) without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows :- “35F. Deposit, pending appeal of duty demanded or penalty levied - Where in any appeal under the Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not against relates to any duty demanded in respect of goods which are not under the control of 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 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 “ 11. Two significant expressions used in the provisions are “undue hardship to such person” and safeguard the interest of revenue” Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view. 12. As noted above there are two important expressions in Section 35(f). One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva V. State of Karnataka and Ors. ( AIR 1994 SC 923 ) that under Indian conditions expression “Undue hardship” is normally related to economic hardship. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva V. State of Karnataka and Ors. ( AIR 1994 SC 923 ) that under Indian conditions expression “Undue hardship” is normally related to economic hardship. “Undue” which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances. 13. For a hardship to be 'undue' it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 14. The word “undue” adds something more than just hardship. It means an excessive hardship or a hardship greater than the circumstances warrant. 17. The Apex Court in the case of Mehsana District Co-operative Milk P.U. Ltd. vs. Union of Indina reported in 2003 (154)E.L.T. 347 (S.C) also considered this issue in the following manner:- “ 2. The issue here relates to the order passed by the Commissioner (Appeal), Central Excise and Customs under Section 35F of the Central Excise Act, 1944. By the impugned order, the appellants have been directed to deposit an amount of Rs.30 lakhs by way of pre-deposit. The reasoning given in support of such order is wholly unsatisfactory. The Appellate Authority has not at all considered the prima facie merits and has concentrated upon the prima facie balance of convenience in the case. The Appellate authority should have addressed its mind to the prima facie merits of the appellants' case and upon being satisfied of the same determined the quantum of deposit taking into consideration the financial hardship and other such relevant factors.” 18. In the case of Indu Nissan Oxo Chemicals Industries Ltd. vs. Union of India reported in 2008(221) ELT 7, reiterated principles laid down in the case of Benara Valves Ltd. and others vs. Commissioner of Central Excise (Supra). 19. Gujarat High Court in case of Special Prints Ltd. V/s. Union of India reported in 2009(238) ELT. 738 (Guj.) went to the extent of saying that merely because the Company becomes sick also is no reason for waiver of pre-deposit. 20. 19. Gujarat High Court in case of Special Prints Ltd. V/s. Union of India reported in 2009(238) ELT. 738 (Guj.) went to the extent of saying that merely because the Company becomes sick also is no reason for waiver of pre-deposit. 20. In light of the discussion held hereinabove, tribunal has duly considered the requirements while dealing with such issues and it has taken good care of these principles and therefore, challenge of petitioner to the order of CESTAT fails and no indulgence is required in the order of pre-deposit of Rs.65.00 Lakhs. 21. Corollary to this main prayer are the challenges of non supply of documents and wrong calculations on the part of authority. Learned counsel for the revenue strenuously pointed out to this Court that not only there is sufficiency of material on record which led the Order-in-Original to entertain and confirm the demand of duty, but, there is also further confirmation of large scale illegality in terms of records of various statements. 22. While adverting to rival contentions on these issues, huge record produced when examined by this Court for prima facie satisfaction, it can be said that even if there is some amount of repetition of calculation presently what the Court is concerned with the order of pre-deposit which is only to the extent of 20% and all the questions on merits shall need to be gone into by the Tribunal in the appeals that had been preferred before it. 23. Needless to mention here that the requisite documents needed by the petitioner to substantiate its submission on merits would be furnished by the Tribunal on request made to it. This issue of non supply in the opinion of this Court does not have vital bearing on the quantum of amount directed to be deposited as they were not for establishing poor financial condition of the petitioner. In this premise, request made by the petitioner in the present petition for dispensing with the condition of pre-deposit of duty of Rs.65.00 Lakhs as directed by the Tribunal in his impugned order is not found sustainable and therefore cannot be acceded to. 24. In this premise, request made by the petitioner in the present petition for dispensing with the condition of pre-deposit of duty of Rs.65.00 Lakhs as directed by the Tribunal in his impugned order is not found sustainable and therefore cannot be acceded to. 24. While dismissing this petition, the petitioner was offered time of eight weeks to allow the petitioner to deposit the amount before the Tribunal and on its so doing, all the four appeals preferred by the petitioner to be directed to be revived and these appeals to be heard on merits by the Tribunal, after considering the request of documents as also on after availing due opportunities to both the sides . However, he has chosen not to avail the said offer. In the aforementioned premise, petition is dismissed and stands disposed of accordingly. Rule is dischaged to the above mentioned extent with no order as to cost.