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1994 DIGILAW 882 (ALL)

S. S. PHARMACEUTICALS (P) LTD. v. CEGAT

1994-11-30

M.C.AGARWAL

body1994
M. C. AGARWAL, J. ( 1 ) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner praying for the following reliefs : (i) to issue any writ order or direction in the nature of mandamus and command opposite party to extend time of pre-deposit of Rs. 20,000/- 15-9-1994 to 22-9-1994, (ii) to issue any writ order or direction in the nature of mandamus and extend time of pre-deposit from 15-9-1994 to 23-9-1994. ( 2 ) I have heard the learned counsel for the petitioner and Sri Vikram Gulati, Advocate for the union of India. ( 3 ) THE facts are that the petitioner preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in which it was required to deposit dues amounting to rs. 51,486. 85 in terms of Section 35f of the Central Excises and Salt Act before the petitioners appeal could be heard on merits. The petitioner moved an application before the Tribunal seeking waiver of the aforesaid condition of pre-deposit. The Tribunal vide order dated 27th july, 1994 allowed the application in part and allowed the petitioner to deposit a sum of Rs. 20,000/- only. The compliance was to be made by 31st August, 1994. The petitioner did not deposit the amount within the time allowed by the Tribunal and filed a writ petition in this court being writ petition No. 803 of 1994 challenging the Tribunals order dated 27th July, 1994. The said writ petition was dismissed by me vide order dated 2nd September, 1994. However, since the time allowed by the Tribunal for depositing Rs. 20,000/- had already expired, with the consent of the counsel for the respondent, this court extended the time upto 15th September, 1994 to enable the petitioner to comply with the aforesaid order of the Tribunal. ( 4 ) THE petitioner did not deposit the aforesaid amount even within the time allowed by this Court and deposited the money on 22-9-1994. On 23rd September, 1994 the Tribunal is said to have passed an order that the deposit has been made beyond time given by the High Court and the time could be extended by the High Court and not by the Tribunal. It is thereafter that the present writ petition was filed on 28th November, 1994 seeking the aforesaid reliefs. On 23rd September, 1994 the Tribunal is said to have passed an order that the deposit has been made beyond time given by the High Court and the time could be extended by the High Court and not by the Tribunal. It is thereafter that the present writ petition was filed on 28th November, 1994 seeking the aforesaid reliefs. ( 5 ) AS is evident from the facts narrated above, the petitioner had not complied with the Tribunals order dated 27th July, 1994. This Court dismissed the writ petition of the petitioner but granted indulgence to the petitioner to comply with the Tribunals order by 15th September, 1994. The petitioner did not comply with the orders of this Court and deposited the money late. Patently the tribunal would not have been justified in extending time that was granted by this Court. The tribunal expressed its view as far back as 23rd September 1994, but for more than two months the petitioner kept quiet and came to this Court only on 28th November, 1994. ( 6 ) THE reliefs prayed for cannot be granted. The first relief cannot be granted because this court cannot command the respondent-Tribunal to do what it has no power to do and the Court cannot issue a mandamus against itself to extend the time. The conduct of the petitioner does not justify the indulgence by reviewing the order dated 2nd September, 1994 passed in the earlier writ petition. ( 7 ) THE appeal before the Tribunal is still pending and the petitioner has the option of depositing the entire amount under Section 35f and get its appeal heard on merits. The petitioner may, therefore, deposit the balance of the amount before the next date fixed by the Tribunal which I am informed is 2nd December, 1994 or it may apply to the Tribunal to grant it some more time for that purpose. ( 8 ) FOR the above reasons, I do not find it a fit case for the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition is, accordingly, dismissed. .