The Tribunal has the discretion to dispense with the deposit of penalty or duty, but it must be realistic and consider the financial hardship of the assessee.

( 1 ) THE petitioner was availing exemption from Central Excise duty on Straw Board in terms of notification No. 80/80 dated 19-6-1980 falling under Tarrif Item No. 17 (2 ). On 6-10-1983 the preventive Officers of the Central Excise, Kanpur, detected that in addition to manufacturing the straw Board, the petitioner was also manufacturing "rice" by dehusking paddy falling under tarif Item No. 68 of the First Schedule to the Central Excises and Salt Act, 1944 in the same premises under the same manner and the same partnership. The petitioner had commenced manufacture of straw board with effect from 11-3-1981. and had availed exemption from payment of Central Excise duty during the financial year 1980-81 to 1982-83 in terms of the aforesaid Notification dated 19-6-1980. There was also a provision in the said notification to the effect that if the value of clearances of all excisable goods by him or on his behalf, for home consumption from one or more factories, during the preceding financial year, had exceeded rupees Twenty Lakhs, the said exemption shall not be withheld. For the three financial years, value of the clearances of both straw board and rice stood as under :" the value of the clearances of both straw board and rice during the financial years was as under : financial Value of straw Value of rice Total year board 1980-81 Rs. 14,000/-Rs. 20,88,224/-Rs. 21,02,224/1981-82 Rs. 6,93,000/-Rs. 27,26,920/-Rs. 34,19,920/1982-83 Rs. 6,53,120/-Rs. 53,50,459/25 Rs. 60,03,579/-"

( 2 ) THUS in view of the aforesaid fact that the value of clearances exceeded Rs. 20 Lakhs during each of the above financial years, the petitioner was not eligible for exemption from payment of excise duty on straw board manufactured and removed by it. Therefore, the Collector, Central excise, Kanpur, adjudicated the case by passing the impugned order dated 9-5-1985 and after a consideration of all the pleas put forth by the petitioner adjudged duty on the said goods, total rs. 14,135/- and also imposed penalty of the Central Excise Rules as contained in his said order.

( 3 ) AGGRIEVED against the above order passed by the Collector, Central Excise, Kanpur, the petitioner filed an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, new Delhi, and also moved a stay application for waiver of the penalty amount subject to the deposit of the amount of duty within six weeks. On a consideration of various pleas the aforesaid tribunal has passed the impugned order dated 23-9-1985 dispensing with the deposit of penalty only. Consequently, the petitioner was required by the said order to deposit the amount of customs duty. Still aggrieved, the petitioner has filed the present writ petition against the aforesaid order dated 23-9-1985 passed by the aforesaid Tribunal on the stay application filed by the petitioner. Counter-affidavit and rejoinder-affidavit has been exchanged in this case.

( 4 ) I have heard learned counsel for the petitioner. No body has appeared on behalf of the Central excise Department although the Court waited for much time. From a perusal of the impugned order passed by the aforesaid Tribunal, it is clear that the arguments advanced for dispensing with the deposit of the disputed amount before the aforesaid Tribunal were three in numbers. First was that the order passed by the Collector was ex parte. ln this regard the aforesaid tribunal has in paragraph 2 of his judgment stated that several opportunities were given by the collector to the petitioner for more than seven months by way of several notices but the petitioner for one reason or the other did not appear. These notices were sent by registered post. Telegrams were also sent. The aforesaid Tribunal, therefore, was of the opinion that it is not a case where a single notice was issued when the party did not appear. Thus the aforesaid Tribunal did not find any force in the first contention raised on behalf of the petitioner in support of the stay application. The second

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