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1995 DIGILAW 49 (ALL)

EVEREST PLASTICS v. UNION OF INDIA

1995-01-11

K.L.SHARMA

body1995
K. L. SHARMA, J. ( 1 ) THIS is a writ petition under Article 226 of Constitution of India directed against the impugned order dated 3-11-1994 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, new Delhi whereby the petitioners - appellants have been directed to deposit in cash a sum of rs. 15,000/- within 3 months and the disputed amount of duty of Rs. 3,83,612/- within 3 months in Excise Appeal No. 2009/94- NRB. Therefore, the petitioners prayed for the issue of a writ of certiorari against the said order and for issue of a writ of mandamus commanding respondent not to realise any amount from the petitioners in pursuance of the order dated 14-7-1993 passed by the Collector Central Excise, Meerut. ( 2 ) I have heard Sri L. P. Nathani, Senior Advocate for the petitioners and Sri Siddharath Singh standing counsel for Central Government and perused the material brought on record. ( 3 ) IT has been submitted on behalf of the petitioners that the learned appellate Tribunal has not at all considered the actual financial position of the petitioner - appellant while disposing of the waiver - stay application and has not complied with the requirements under the proviso to section 35f of the Central Excises and Salt Act, 1944. In support of his contention the learned counsel Mr. Nathani invited my attention to the decisions in the case of Mitra Sen Industries v. Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and Anr.-1988 (34) E. L. T. 450 (All.) and two other decisions of this Court in the case of M. C. Goel v. Union of India and ors.-1988 (35) E. L. T. 449 (All.) and a recent decision of this Court in the case of Taj Beverages (P) Ltd. , Agra v. Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and Anr. 1992 (38) ECR 497 (Allahabad ). ( 4 ) IN reply Mr. Siddharath Singh, Central Government Standing Counsel has stated that the learned Tribunal has decided the stay/waiver application after considering the prima facie merit of the matter in appeal and it appears that the question of financial position was not pressed before the Tribunal. ( 5 ) I have perused the impugned order as well as the copy of the application filed by the appellant before the Tribunal. ( 5 ) I have perused the impugned order as well as the copy of the application filed by the appellant before the Tribunal. I find that the grounds for stay are clearly mentioned in the last paragraph above the clause of prayer. It inter alia includes the financial position of the appellant which is not such as to make the deposit of amounts demanded in the impugned order without causing undue hardship to the appellant. A copy of the balance sheet for the financial year 1993-94 alongwith an affidavit was also submitted by petitioner before the Tribunal. The petitioner had also offered to furnish a personal surety to safeguard revenue. But the Tribunal has unfortunately not considered the actual financial position and offer of the appellant. It has obviously deprived the appellant of the benefit which could acrue to the appellant under proviso to Section 35f of the aforesaid Act and has been denied without consideration of his ground by the learned tribunal. ( 6 ) THE object underlying the proviso has been defeated by the learned Tribunal by having failed to consider the ground of financial position shown by the balance-sheet submitted by him. The appellate authority should have taken a realistic view of the matter in determining the condition which should be imposed upon the person before hearing of his appeal. As against the penalty of rs. 25,000/- and odd a sum of Rs. 15,000/- has been demanded but as against the duty of about 4 lacs the whole has been required to be deposited. It is true that the petitioner could not also furnish bank guarantee for the huge amount of Rs. 4 lacs and the bank might have required him to deposit cash security in the bank and further charged interest. But the petitioner could be asked to furnish security bond with or without surety bond in respect of the amount which could not be actually deposited by him in view of his financial position at that time. Therefore, the impugned order can not be sustained and the waiver/stay application has to be re-considered by the Tribunal with respect to the financial position of the petitioner-appellant. Therefore, the impugned order can not be sustained and the waiver/stay application has to be re-considered by the Tribunal with respect to the financial position of the petitioner-appellant. ( 7 ) CONSEQUENTLY this writ petition is hereby allowed and impugned order dated 2-11-1994 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi on the waiver/stay application in Excise Appeal No. 2009/94, NRB is hereby quashed. It is hereby directed that the learned Tribunal shall consider and decide afresh the waiver/stay application with respect to the financial position of the appellant with a view to give him benefit of the proviso to Section 35f of the Central Excises and Salt Act, 1944. The Appellate Tribunal may also expeditiously hear and decide the appeal filed by the appellant alongwith or immediately after the stay/waiver application. .