CIVIL WRIT PETITION NO.2575 OF 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CIVIL WRIT PETITION NO.2575 OF 2011 DATE OF DECISION: 11.2.2011. M/s Triveni Castings Pvt. Ltd. and another ....Petitioners Versus Customs, Excise and Service Tax Appellate Tribunal and another ...Respondents CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE AJAY KUMAR MITTAL Present: Mr. Arun Nehra, Advocate for the petitioners. *** ADARSH KUMAR GOEL, J (Oral) 1. This petition seeks quashing of order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 10.11.2010 declining complete waiver of requirement of pre-deposit for hearing of appeal under the Central Excise Act, 1944 and instead granting partial waiver in following terms:- “In view of the above, this is not the case for waiver from the requirement of pre-deposit. Though appellant No.1 have pleaded financial hardship claiming to have suffered loss during 2008-09 and have produced balance sheet and profit of loss account for 2008-09, in view of large scale bogus transactions, we have serious doubts about their claim of having suffered loss. Accordingly Parwanoo unit of the appellant No.1 and the appellant No.10 to 23 are directed to deposit the entire amount of cenvat credit whose demand has been confirmed against them by the CIVIL WRIT PETITION NO.2575 OF 2011 -2- impugned order, within eight weeks from the date of this order. The appellant no.2 to 9, who are registered dealers, who had taken credit on the basis of bogus invoices without receiving any material, are directed to deposit 50% of the penalty imposed on them by the impugned order, within eight weeks from the date of this order. Shri Vijay Gupta, MD of appellant no.1, who prima facie appears to be the person at the centre of this fraud, is directed to deposit an amount of Rs.5 lakhs within eight weeks from the date of this order. Since Shri Harnail Singh, Accountant, is just employee of the appellant No.1, the requirement of pre-deposit is waived in respect of him. Compliance by appellant Nos.1to 23 and 25 to be reported on 10.1.2011. On deposit of the directed amount by the appellant No.1 and 10 to 23 within the stipulated period, the requirement of pre-deposit of interest and penalty shall stand waived and recovery thereof stayed, till the disposal of the appeals. Similarly, on deposit of the directed amount by the appellant no.2 to 9 and 25 within stipulated period, the requirement of pre- deposit of balance amount of penalty shall stand waived and recovery thereof stayed till the disposal of the appeals.” 2. We have heard learned counsel for the petitioners. 3. Learned counsel for the petitioners raised following contentions:- i) On two earlier occasions petitioners were granted CIVIL WRIT PETITION NO.2575 OF 2011 -3- complete waiver; ii) The finding that the petitioners availed of cenvat credit on fake invoices without receiving the goods was erroneous as petitioner consumed electricity for manufacture of goods from the inputs; iii) Omission of entries at Information Collecting Centre could not be conclusive of movement of goods; iv) Possession of unit has already been taken by the bank for recovery of its dues which shows that the petitioner had the financial hardships. 4. We are unable to accept the submissions. The adjudicating authority has considered all the aspects of the matter and recorded a firm finding that petitioners availed cenvat credit on fake invoices. The said findings are yet to be gone into by the Tribunal. The Tribunal has not found prima-facie case on merits or on the aspect of financial hardship. In the facts and circumstances of the case, partial waiver has been granted to the petitioners. Mere fact that earlier complete waiver was granted and matter was remanded cannot by itself a ground to grant complete waiver. After remand, issues on which remand was made have been decided against the petitioner. 5. It is not possible to hold that there is any patent error in the interim order passed by the Tribunal. In absence of strong prima facie case on merits mere plea of financial hardship cannot be a ground to grant complete waiver. No interference is called far at this stage. 6. Accordingly, this petition is dismissed. (Adarsh Kumar Goel) Judge February 11, 2011 (Ajay Kumar Mittal) Pka Judge