A strong prima facie case is a relevant consideration for determining undue hardship under Section 35f of the Central Excise Act, 1944.

( 1 ) IN the instant writ application,, the petitioners have challenged an order dated 22nd April, 1998 passed by the Commissioner of Central Excise (Appeals) disposing of the stay application directing the petitioners to deposit a sum of Rs. 10 lakhs for both the cases within 10 days from the date of receipt of the order as also the order dated 8th May, 1997 rejecting the application of the petitioner to modify the demand order passed by the Superintendent, Central Excise, Range-Ill, Howrah West Division.

( 2 ) ADMITTED the present petitioners have filed two appeals along with two stay applications before the Commissioner of Central Excise (Appeals), Calcutta, against the two orders of adjudication both dated 8th May, 1997, the petitioners prayed for exemption of such pre-deposit, inter alia, on the ground that the company's financial position is not sound and also on the ground that he has a strong prima facie case.

( 3 ) BY the first impugned order dated 28th November, 1997 the company has been, directed to deposit a sum of Rs. 10 lakhs out of the disputed amount of Rs. l7,43,395/- and by the Second impugned order the petitioners' prayer for modification of the same has been rejected.

( 4 ) AFTER considering the respective submissions of the parties and the writ application' and all other materials on records, I am of the view that the impugned orders cannot be sustained.

( 5 ) BY the original order by which the petitioner has been directed to deposit a sum of Rs. 10 lakhs, it appears that the Commissioner (Appeals) has rejected the prayer for exemption being of the view that it is urged by every appellant that he has a good prima facie case and in reality no appellant would state that he does not have a strong prima facie case. It has been held by the said Commissioner that even if the appellant considers that he has a strong case in his favour, the same is not a ground sufficient enough to grant waiver of pre-deposit unless he is able to establish that pre-deposit would cause undue hardship to him.

( 6 ) IT, thus, appears that the Commissioner of Appeals completely fell into error in not considering at all that through judicial precedence, it is now well settled that whether the appellant has got a prima facie case is also relevant consideration for determining whether the appellant can be granted exemption of pre-deposit because of undue hardship.

( 7 ) IT appears that as the Commissioner wrongly held that the same will not be relevant consideration on its own, an application for modification of that order was made wherein the attention of the Commissioner was drawn to judgment of a learned Single Judge of this Hon'ble Court in the case of Bangaigaon Refinery Petrochem Ltd. v. Collector of Central Excise (Appeals), Calcutta, wherein it has been held, inter alia, that the expression 'undue hardship' would cover a case where the appellant has a strong prima facie case.

( 8 ) IT appears that notwithstanding the attention of the Commissioner was drawn to such a decision, the prayer for modification was rejected on the ground that the appellant had failed to advance any argument in addition to what has already been made by them during the proceeding of the stay application nor any fresh fact has been brought.

( 9 ) IT thus, appears to this Court that the same Commissioner is not even aware of the interpretation of the expression 'undue hardship' in Section 35f of the Central Excise Act as made by the different courts nor has he, understood the implication of such judicial pronouncement.

( 10 ) IT is, therefore, necessary for this court once again to reiterate the legal position, in this regard as it appears to this Court that the judicial pronouncements have not percolated down to the said Commissioner.

( 11 ) BECAUSE of the several judicial pronouncements, it is no more in doubt that the expression 'undue hardship' as used in Section 35f of the Central Excise Act will cover a case where the a