K.A. SWAMI, C.J.

At the stage of admission, Shri Jayachandran, learned Additional Central Government Standing Counsel for the Central Excise Department has taken notice for the respondents. As the appeal lies in a narrow compass, it is admitted and heard for final disposal.

2.The appeal is preferred against the order dated 6-2-1997 passed by the learned single Judge, rejecting W.P. 1412 of 1997 and W.M.P. 2375 of 1997 filed therein.

3.In the writ petition, the petitioner sought for quashing the order dated 7-1-1997 passed by the 1st respondent in Appeal 182/96 (MDU). The petitioner has also sought for quashing the demand of excise duty as claimed in the show cause notice dated 23-6-1995 as confirmed in the order dated 6-3-1996 by the 2nd respondent in his proceedings, Ref. No. C. IV/16/59/95-UCD.

4.We may, at the outset, point out that the latter prayer cannot be gone into in the proceeding because the same is challenged in the appeal preferred before the Appellate Authority. The first prayer relates to the validity of the order dated 7-1-1997 refusing to grant waiver of the payment of duty, pending disposal of the appeal under Section 35F of the Central Excise Act, 1944 (for short the "Act"). Therefore, the latter prayer is refused, without prejudice to the right of the petitioner to pursue the appeal preferred against that order.

5.The 1st respondent has refused to grant the waiver under Section 35F of the Act on the ground thatprima facie, the petitioner has no case in the appeal. Secondly, the petitioner/appellant cannot be held to suffer undue hardship if it is made to pay the duty as assessed. This conclusion the 1st respondent has arrived at, after looking into the balance sheet produced by the appellant for the year ending 31-3-1995, even though the said balance sheet shows loss. However, the balance sheet for the year ending 31-3-1996 had not been produced, even though it cannot be said that it could not have been available. As the financial position of the appellant as on the date of consideration of the application has to be considered in order to find out whether undue hardship would be caused to the appellant, in the event, it is directed to pay the entire duty as assessed, we are of the view that it is necessary that the appellant seeking waiver under Section 35F of the Act, must place before the Authority the latest financial position. Therefore, we are of the view that the appellant should be given an opportunity to produce the latest balance sheet and profit and loss account for the year ending 31-3-1996.

6.We, accordingly, allow the appeal set aside the order dated 6-2-1997 passed in W.P. 1412 of 1997 and also quash the order dated 7-1-1997 passed by the 1st respondent and remit the matter to the Appellate Authority with liberty to the petitioner/appellant to produce the latest balance sheet before the Appellate Authority and after that, the appellate Authority shall decide the application for waiver in accordance with law after hearing the appellant. The latest balance sheet shall be produced within a fortnight from today. The C.M.P. also stands disposed of. However, we make no order as to costs.