JUDGMENT 1. - Heard finally with the consent of lea, ned counsel for the parties. 2. Since facts and question of law involved in these appeals are common, as agreed by the learned counsel for the parties, we intend to dispose off these appeals by common order. 3. These Excise Appeals are directed against interim order passed by the Custom, Excise & Service Tax Appellate Tribunal, New Delhi, whereby, while disposing off the application to deposit pre-deposit amount/stay application, the Tribunal has directed the appellants to deposit 250%o of duty demand and stayed/waived the recovery of remaining amount of duty as well as penalty, during pendency of the appeals before the Tribunal. 4. For convenience, we are giving the facts of D.B. Excise Appeal No. 39/2012-M/s Savitri Concast Ltd. v. . Commissioner of Central Excise, Jaipur-1, Jaipur & Anr. 5. This appeal is directed against the impugned order of Custom, Excise & Service Tax Appellate Tribunal, New Delhi, dated 23.10.2012, whereby stay application filed by appellant, has been disposed off and appellant has been directed to deposit 25% of duty demand during pendency of the appeal and remaining amount of duty as well as amount of penalty, has been stayed till disposal of the appeal. 6. Appellant- M/s. Savitri Concast Ltd. is manufacturer of M.S. Ingots chargeable to Central Excise duty under heading 72.06 of the Tariff. Shri Harish Aggarwal is the Director of the appellant-Company. the appellant-Company, among others, supplied the M.S. Ingots to a rolling mill M/S Shree Sharma Steel Rolling Mills Pvt. Ltd., Jaipur (hereinafter referred to as 'M/S SSSRM'). M/s SSSRM manufacture bars/rods (saria) chargeable to Central Excise duty. The Jurisdictional Central Excise Officers on receipt of intelligence about the duty evasion by M/S. SSSRM, visited their unit on 10.09.2005. During the course of search of the factory, certain loose papers containing details of the despatches of the bars/rods and receipt of M.S. Ingots from various manufacturers of ingots were recovered, which were resumed by the officers. From those records, it was found that the appellant-Company had also supplied M.S. Ingots to M/S SSSRM. During the course of search of the factory, certain loose papers containing details of the despatches of the bars/rods and receipt of M.S. Ingots from various manufacturers of ingots were recovered, which were resumed by the officers. From those records, it was found that the appellant-Company had also supplied M.S. Ingots to M/S SSSRM. On the basis of these papers, the officers prepared a chart regarding receipt of M.S. Ingots by M/S SSSRM from the appellant-Company during the period from July, 2005 to September, 2005 and on comparison of these receipts with the invoices issued by the appellant-Company to M/S SSSRM during the same period, it appeared that during this period, while total quantity of Ingots supplied by the appellant Company to SSSRM was 1181.07 M.T., the invoices had been issued only for quantity of 726.76 M.T. and as such no invoices had been issued for quantity of 461.31 M.T. On scrutiny of the private ledger account of M/S SSSRM of the private ledger account of M/S SSSRM for the period from April, 2005 to June, 2005, it was found that during this period, they had received M.S. Ingots worth Rs. 5,25,33,509/- from the appellant-Company and in respect of these receipts, there were no invoices issued by the appellant-Company. Thus, it appears that this quantity of ingots had also been supplied by the appellant-Company to M/S SSSRM without payment of duty. 7. On the basis of above investigation, a show cause notice was issued to the appellant-Company and its Director for recovery of alleged short paid duty and for imposition of penalty. 8. The above show cause notice was adjudicated by the Commissioner, Central Excise, Jaipur, vide order dated 06.01.2009, whereby he confirmed the duty demand of As. 5,37,28,971/-, against the appellant under proviso to Section 11A(1) of Central Excise Act, 1944 along with interest on this duty under Section 11AB, also imposed a penalty of equal amount on the appellant-Company under Section 11 AC and penalty of Rs. 25,00,000/- was also imposed on Shri Harish Aggarwal, Director of the appellant-Company. 9. Being aggrieved with the above order of Commissioner, Central Excise, Jaipur, the appellant filed an appeal before the Appellate Tribunal along with stay application. The appeal remained pending since 2009. 25,00,000/- was also imposed on Shri Harish Aggarwal, Director of the appellant-Company. 9. Being aggrieved with the above order of Commissioner, Central Excise, Jaipur, the appellant filed an appeal before the Appellate Tribunal along with stay application. The appeal remained pending since 2009. It appears that arguments were not advanced on the stay application or the application for waiver to deposit pre-deposit amount, therefore, the Appellate Tribunal, vide its order dated 29.11.2011, passed an order, on interim basis, for interim deposit. The appellant-Company was directed to deposit As. 10,00,000/- (Rs. Ten lacs) as an interim measure. Shri Harish Aggarwal, Director of M/s. Savitri Concast Ltd. was directed tc deposit As. 5,00,000/- (Rs. Five lacs) within four weeks and compliance was to be reported on 27.01.2012. 10. Thereafter, arguments were heard on the stay application and the Appellate Tribunal, vide its order dated 23.10.2012, directed the appellant-Company to deposit an amount of 25% of the duty demand, within a period of eight weeks and Shri Harish Aggarwal, Director of the appellant-Company was directed to deposit Rs. 3,00,000/- (Rs. Three lacs), within a period of eight weeks. Rest of the amount of duty and amount of penalty were stayed till disposal of the appeals. 11. Being aggrieved with the above interim order of the Appellate Tribunal, passed on the stay application, the appellant has preferred this appeal. 12. Following amount of duty and equal amount of penalty thereof, is involved in these appeals : 1 D.B. Excise Appeal No. 39/2012- M/S. SAVITRI CONCAST LTD. v. COMMISSIONER OF CENTRAL EXCISE, JAIPUR-1 & ANR. Rs. 5,37,28,971, as Excise duty + equal amount of penalty 2. D.B. Excise Appeal No. 40/2012-M/S. KHETAN ALLOYS PVT. LTD. v. COMMISSIONER OF CENTRAL EXCISE, JAIPUR-1 & ANR Rs. 2,89,14,441/-, as Excise duty + equal amount of penalty 3. D.B. Excise Appeal No. 41/2012- SHRI RAJENDRA KUMAR KHETAN v. COMMISSIONER OF CENTRAL EXCISE, JAIPUR-1 & ANR. Rs. 20,00,000/-, as penalty 4. D.B. Excise Appeal No. 42/2012- HARISH AGGARWAL v. COMMISSIONER OF CENTRAL EXCISE, JAIPUR-1 & ANR. Rs. 3,00,000/-, as penalty 13. Submission of the learned counsel for appellant is that once an order is passed, at interim stage, to make the payment of interim deposit, (signed on 29.11.2011/02.12.2011) (Annexure-6), the Tribunal could not have passed further order i.e. order dated 23.10.2012, deciding stay application, therefore, the Tribunal committed an illegality in passing the impugned order dated 23.10.2012. 3,00,000/-, as penalty 13. Submission of the learned counsel for appellant is that once an order is passed, at interim stage, to make the payment of interim deposit, (signed on 29.11.2011/02.12.2011) (Annexure-6), the Tribunal could not have passed further order i.e. order dated 23.10.2012, deciding stay application, therefore, the Tribunal committed an illegality in passing the impugned order dated 23.10.2012. He submitted that so far as interim order dated 29.11.2011 is concerned, the appellant has already complied with the same. He also submitted that duty demand could not have been raised solely on the basis of average electricity consumption, therefore, prima- facie, demand raised against the appellant, is not tenable and the same is liable to be set aside in an appeal, pending before the Tribunal. Therefore, entire demand raised by the respondents should have been stayed by the Tribunal. 14. Learned counsel for respondents supported the impugned order passed by the Appellate Tribunal and submitted that during search of M/S. Shree Sharma Steel Rolling Mills Pvt. Ltd., incriminating evidences were recovered, connecting the appellant in evasion of excise duty. M/S Shree Sharma Steel Rolling Mills Pvt. Ltd., also filed an appeal, being aggrieved with the duty demand and the Tribunal passed an interim order on the stay application, which was challenged by M/S. Shree Sharma Steel Rolling Mills Pvt. Ltd., by way of filing writ petition before this Court, which was dismissed. Thereafter, M/S SSSRM filed special Leave Petition before the Hon'ble Supreme Court and the same was also dismissed as withdrawn. Thereafter, review petition was filed by M/S SSSRM before this Court, which was also dismissed. In these circumstances, the present appeal, being similar with M/S SSSRM, is liable to be dismissed. being covered by the order passed by this Court in the case of M/S Shri Sharma Steel Rolling Pvt. Ltd. & Other v. Union of India & Others. 15. Learned counsel for respondents also submitted that in similar circumstances, this Court dismissed D.B. Civil Writ Petition No. 1 I 1557/2012-Shree Cement Limited v. The Commissioner (Appeals-II) & Ors., vide order dated 21.02.2012 . It is also argued that in the matter of money, there cannot be any irreparable injury, therefore, no interim stay order should be passed in such matters, relating to excise duty or tax matters. He also referred the case of Indu Nissan Oxo Chemicals Ind. It is also argued that in the matter of money, there cannot be any irreparable injury, therefore, no interim stay order should be passed in such matters, relating to excise duty or tax matters. He also referred the case of Indu Nissan Oxo Chemicals Ind. Ltd. v. Union of India (UOI) and Ors., reported in 2008(221) ELT 7(S.C.) , wherein the Hon'ble Apex Court considered the submissions of assessee regarding financial hardship and held that even if there is financial hardship, the same cannot be a ground to dispense with predeposit amount and balance of convenience is not in favour of appellant. He, therefore, submitted that there is no merit in any of the appeals and the same are liable to be dismissed. 16. We have considered the submissions of learned counsel for the parties and examined the impugned orders passed by the Appellate Tribunal. 17. So far as first submission of the learned counsel for appellant about passing of interim order dated 29.11.2011 and subsequent final order on the stay application dated 23.10.2012 is concerned, we find from the order dated 29.11.2011 that it was passed on interim basis, during pendency of the stay application and appellants were directed to deposit the amount of duty, as interim deposit. Since appeals were preferred in the year 2009 and the stay applications also remained pending for about two years, therefore, the Tribunal thought it proper that interim order should be passed during pendency of the stay application, therefore, order dated 29.11.2011 was passed. We find no infirmity in passing the said interim order. 18. So far as order dated 23.10.2012, which is impugned in this appeal, is concerned, the same has been passed after hearing both the parties and it is a final order on the stay application, directing the appellants to deposit 25% of the duty demand. The Tribunal is empowered to pass interim order, if stay application is not argued for a period of about two years, therefore, we find no substance in the submission of the learned counsel for appellants. After passing of interim order dated 29.11.2011, the Tribunal had the jurisdiction to pass final order on the stay application. 19. The Tribunal is empowered to pass interim order, if stay application is not argued for a period of about two years, therefore, we find no substance in the submission of the learned counsel for appellants. After passing of interim order dated 29.11.2011, the Tribunal had the jurisdiction to pass final order on the stay application. 19. So far as another submission of the learned counsel for appellants that excise duty demanded by the respondents, was totally based on average electricity consumption is concerned, we find from the impugned orders and various documents placed on record, that there were other evidence available on the record, which have been referred by the Appellate Tribunal, which were made the basis for issuing/raising the demand. Para 6 of the order dated 23.10.2012 passed by the Appellate Tribunal, impugned in D.B. Excise Appeal No. 39/2012-M/s Savitri Concast Ltd. v. Commissioner of Central Excise, Jaipur-1, Jaipur & Anr., is reproduced as under: "6. Though in this case, the duty demand during the period from February 2002 to September 2006 has been confirmed on the basis of assumption that average power consumption for production production of 1 M.T. of M.S. Ingots is 689 units, we also find that the documents recovered from the premises of SSSRM clearly indicate that the appellant unit was making clearances to M/s SSSRM without payment of duty and without issue of invoices. It is seen that while during period from July 2005 to September 2005 M/s SSSRM had received 1188.07 M.T of M.S. Ingots, the invoices had been issued by the appellant company only for a quantity of 727 M.T. and about 461 M.T. of M.S. Ingots had been cleared without payment of duty. Beside this, the records recovered from SSSRM also indicate that during period from April 2005 to June 2005 the SSSRM had received M.S. Ingots valued at As. 5,25,33,509/- form the appellant company, the duty involved on which is about Rupees 86 lakhs. In view of this evidence on record, it cannot be said that the appellant company was not indulging in duty evasion the dispute basically would be only about the quantum, the evidence in respect of which can be examined only at the time of final hearing. In view of this evidence on record, it cannot be said that the appellant company was not indulging in duty evasion the dispute basically would be only about the quantum, the evidence in respect of which can be examined only at the time of final hearing. At this prima facie stage, we are of the view that this is not the case for total waiver from the requirement of pre-deposit and some conditions have to be imposed for safeguarding the interest of the Revenue. The appellant company, therefore, is directed to deposit an amount of 25% of the duty demand confirmed against it within a period of eight weeks from the date of this order after adjusting an amount which has already been paid. As regards penalty on Shri Harish Aggarwal, Director of the appellant company, prima-facie, we are of the view that in view of the evidence on record, the provisions of Rule 26 appears to be attracted in his case and, hence, his case also cannot be said to be a case for total waiver from the requirement of pre-deposit. Shri Harish Aggarwal, Director, is therefore, also directed to deposit an amount of Rs. 3,00,000/- (Rupees Three Lakhs) within a period of eight weeks from the date of this order. On deposit of these amounts by the appellant company and its Director within the stipulated period, the requirement of pre-deposit of balance amount of duty demand, interest and penalty by the appellant company and the requirement of balance amount of penalty by Shri Harish Aggarwal, Director shall stand waived and recovery thereof stayed till the disposal of the appeals. Compliance to be reported on 4/l/2013." 20. From the above para, it is clear that there were additional evidence for issuing demand, in addition to assumption that average power consumption for production of 1 M.T. of M.S. Ingots in 689 units, therefore, we don not find any force in the submission of the learned counsel for appellants in this regard also. 21. That apart, it is relevant to mention that matter was substantially connected with the case of M/s Shree Sharma Steel Rolling Mills Pvt. Ltd. & Others v. Union of India & Others, wherein on the basis of same set of facts, demand duty was raised and against the order passed on stay application, writ petition was preferred before this Court, which was dismissed. Thereafter, Special Leave Petition was also dismissed as withdrawn, with liberty to file review petition. Thereafter, review petition was filed before this Court and the same was also dismissed. Therefore, the present matters are substantially covered by the order passed by this Court in M/s Shree Sharma Steel Rolling Mills Pvt. Ltd. & Others v. Union of India & Others. 22. In similar circumstances, a Co-ordinate Division Bench of this Court also rejected the writ petition, directed against the interim order passed on the stay application, in Shree Cement Limited v. The Commissioner (Appeals-11) & Ors. (supra), decided on 21.02.2012. Order dated 21.02.20.12 is also reproduced as under: "By way of filing this writ petition, interim order dated 29.12.2011 passed by the Commissioner (Appeals-II), Customs & Central Excise under Section 35F of the Central Excise Act has been questioned. The question involved was that whether the appellants are entitled for credit to the extent of input/input service used in the production of electricity which was not captively consumed for manufacture of final product or for other purpose within the factory but was sold to other different legal entity out of the factory production of appellants as held by the Adjudicatory Authority. Considering the fact that supply of electricity was not within factory, we find the order to be justified. Even otherwise, no irreparable injury is going to be caused by dispensing with deposit of amount of cenvat credit of As. 53,17,767/- and As. 90,93,961/- availed by petitioner as well as 50% of the amount of penalty imposed under Rule 15(1) of the CENVAT Credit Rules, 2004, which is As. 8,50,000/- in case of appellant No.1 and Rs. 14,50,000/- in case of appellant No.2, within thirty days of receipt of the order and on deposit of the aforesaid amount recovery of interest and rest of the amount of penalty will remain stayed till disposal of the appeal. We find finding of fact recorded by the Adjudicatory Authority to be prima facie appropriate. No ground for interference in the impugned order is made out. However, as prayed by the counsel for petitioner, we extend the time to comply with the order by fifteen days from today. Accordingly, the writ petition is dismissed. Stay application is also dismissed. 23. Hon'ble the Apex Court in Indu Nissan Oxo Chemicals Ind. Ltd. v. Union of India (UOI) and Ors. However, as prayed by the counsel for petitioner, we extend the time to comply with the order by fifteen days from today. Accordingly, the writ petition is dismissed. Stay application is also dismissed. 23. Hon'ble the Apex Court in Indu Nissan Oxo Chemicals Ind. Ltd. v. Union of India (UOI) and Ors. (supra), considering the matter relating to waiver of deposit of amount or pre-deposit of demand during pendency of the appeal relating to the Customs Act, 1962 and considering the plea of financial hardship and balance of convenience, held that even if there is financial hardship, the same cannot be a ground to dispense with predeposit amount and balance of convenience is not in favour of appellant. Para Nos. 9 to 18 of the above judgment are reproduce as under: "9. We shall deal with first the issue relating to the question of stay/dispensation of pre deposit in respect of sick industry. In Metal Box India Ltd. v. Commissioner of Central Excise, Mumbai: 2003 (155) ELT 13 (SC) , this Court had clearly observed as follows: Mr. Rana Mukherjee, the learned Counsel for the appellants submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short 'the Sick Industries Act'), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, section 22 of the Sick Industries Act provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver In respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act. 10. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act. 10. Principles relating to grant of stay pending disposal of the matter 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. 11. The applicable principles have been set out succinctly in Silliguri I Municipality and Ors. V. Amalendy, Das and Ors.: [1984] 146 ITR 624 (SC) , Samarias Trading Co. Pvt., Ltd., V. S. Samuel and Ors.: [1985]2 SCR 24 and Assistant Collector of Central Excise V. Dunlop India Ltd.,: 1985 ECR 4 (SC). 12. It is true that on merely establishing a prima facie case, interim order 1 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 consequences flowing form 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. 13. Section 129-E of the Act reads as follows: 129E. DEPOSIT, PENDING APPEAL, OF DUTY AND INTEREST DEMANDED OR PENALTY LEVIE- Where in any appeal under this Chapter, the decision or order appalled against related to any duty and interest demanded in respect of goods which are not under the control of the customs 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 proper officer the duty and interest officer the duty and interest 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 and interest 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 interests of revenue." 14. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests 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. 15. As noted above there are two important expressions in Section 129F. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to he established by him. A mere assertion about undue hardship would not be sufficient. It was note by this Court in S. Vasudeva V. State of Karnataka and Ors.: [1993] 2 SCR 715 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. 16. 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. 17.The above position has been highlighted in Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr.: 2006 ECR 314 (SC) . Though the said case related to dispute under the Customs Excise Act, 1944 (in short the 'Excise Act') the parameters are the same. 18. We do not find any infirmity in the order directing deposit of Rupees two crores as affirmed by the High Court. The appellant is granted three months time to deposit the amount fixed by the CESTAT. If it is not deposited within the aforesaid time, the appeal before the CESTAT shall stand dismissed." 24. 18. We do not find any infirmity in the order directing deposit of Rupees two crores as affirmed by the High Court. The appellant is granted three months time to deposit the amount fixed by the CESTAT. If it is not deposited within the aforesaid time, the appeal before the CESTAT shall stand dismissed." 24. In view of above discussion, we find no merit in any of the appeals and the same are, accordingly, dismissed. 25. Stay Application Nos. 3683/2012, 3684/2012, 3685/2012 and 3686/2012 also stand dismissed. 26. Learned counsel for appellants prayed that two months' time may be granted to deposit the amount in question. Prayer is allowed. Two months' time is allowed to the appellants to deposit the amount in question. 27. It is needless to mention that any observation made herein above, will not come in the way of appellants while arguing the appeals, finally, before the Appellate Tribunal. 28. Registry is directed to place on record a copy of this order in each connected file.Appeal And Stay Application Dismissed . *******