VINOD KUMAR GUPTA, J.

( 1 ) THE order dated 27-5-1997 passed by the respondent No. 1 has been challenged by the petitioner primarily on the ground that this respondent did not take into account all the relevant factors while disposing of the petitioner's prayer for dispensing with the requirements of pre-deposit of the amount of the duty of the Central Excise in the seven appeals filed by the petitioner before him. It is on the following main consideration that the respondent No. 1 has declined to dispense with the pre-deposit of the amount of duty :"the ground that the appellant has a strong case is urged by every appellant and that is the reason why, based on their belief, they file an appeal. It is not a ground sufficient enough to grant waiver of pre-deposit unless, in addition, the appellant is able to establish that pre-deposit would cause undue hardship to them. "

( 2 ) DURING the course of hearing today, the parties agreed that this petition may be finally disposed of today itself without inviting the respondents to file the affidavit-in-opposition. Since, however, the affidavit-in-op-position has not been filed, as I observed, that none of the allegations in the writ petition shall be deemed to have been admitted by the respondents.

( 3 ) CHAPTER VIA of the Central Excises and Salt Act, 1944, relates to the appeals by persons aggrieved by any decision or orders passed under the Act by a Central Excise officer. Section 35 of the Act contained in Ch. VIA gives right to such a person to file an appeal before the Commissioner (Appeals), Central Excise. Various procedural aspects relating to the filing of the appeal are contained in Section 35 and in the sections following Section 35. Section 35f, however, relates to the requirement of the appellant depositing with the adjudicating authority the amount of duty of the Central Excise or any penalty levied against the appellant as a condition precedent for filing the appeal. This deposit is required to be made during the pendency of the appeal. Proviso to Section 35f, however, permits an appellant to request the Commissioner (Appeals) or the Appellate Tribunal, as the case may be, to dispense with the requirement of the deposit of the amount subject to such conditions, as the appellate forum may deem fit to impose as to safeguard the interests of the Revenue. Insofar as the question relating to the dispensing with the deposit is concerned, the proviso stipulates that this question has to be decided by the appellate forum upon considering whether the deposit of the duty or the penalty would cause undue hardship to the appellant. How is undue hardship caused to an appellant in the matter of the deposit of the duty or penalty would depend upon the facts of each case. Undue hardship is a term which may vary from case to case and in every case the appellant has to satisfy the appellate forum that, if it is required to deposit the amount of duty or the penalty, such requirement shall cause undue hardship to the appellant.

( 4 ) IN the case of Vijay Prokash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay, Their Lordships of the Supreme Court observed while dealing with Section 129e of the Customs Act, which is pari materia to Section 35f of the Central Excises and Salt Act, 1944, that the proviso gives the discretion to the authority to dispense with the obligation to deposit in case of undue hardship and that such discretion must be exercised on relevant materials honestly, bona fide and objectively. Their Lordships further. observed that in the facts and circumstances of each case, all the relevant factors, viz. , the probability of the prima facie case of the appellant and the conduct of the parties have to be taken into consideration by the appellate forum while it is to decide the question whether the deposit has to be dispensed with or not.

( 5 ) A single Bench of the Kerala High Court, in the case of V. I. T. Sea Foods v. Collector of Customs, o

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