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2004 DIGILAW 756 (GUJ)

ALASKA INDUSTRIES v. UNION OF INDIA

2004-11-03

B.J.SHETHNA, SHARAD D.DAVE

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B. J. SHETHNA, J. ( 1 ) RULE. Learned standing counsel Shri Malkan, appearing on advance copy of these petitions being served upon him, waives service of rule for the respondents in all these petitions. ( 2 ) ). In all these petitions, the petitioners are common. They have challenged in these petitions common impugned order dated 20. 09. 2004 passed by the Commissioner (Appeals), whereby he had rejected all the misc. applications filed by M/s Alaska Industries and its partners and others of modifying common stay orders passed on 03. 02. 2004 and directed the petitioners to deposit Rs. 5,25,399/- as ordered, as pre-deposit vide earlier stay order dated 03. 02. 2004 within two weeks from the date of receipt of the order and report compliance within four weeks thereafter, failing which it was ordered that the main appeal be dismissed for noncompliance of Section 35 (F) of the Central Excise Act, 1944. ( 3 ) RELYING on the judgment of the Division Bench of Rajasthan High Court in the case of P. G. O. Processors Pvt. Ltd. V/s Commissioner, Central Excise, reported in 2000 (122) E. L. T. 26 (Raj.), learned counsel Shri Nanavati, appearing in all these petitions for the petitioners, submitted that without supplying copies of necessary documents, the Commissioner (Appeals) passed stay order dated 03. 02. 2004 and directed the petitioners to give pre-deposit of Rs. 5,25,399/- against the duty demanded under Section 35 (F) of the Central Excise Act, 1944 within two weeks of the date of the communication of the order and on depositing the same, the recovery of all dues was stayed. Though, this fact was specifically pointed out to the Commissioner (Appeals) in their modification applications, the same was not considered by the Commissioner (Appeals) and without considering the same, the Commissioner (Appeals) by his impugned common order dated 20. 09. 2004, dismissed all the four modification applications. Therefore, the impugned order dated 20. 09. 2004 be quashed and set aside. With utmost respect to learned counsel Shri Nanavati, we fail to appreciate that how the aforesaid judgment of the Rajasthan High Court in P. G. O. Processors (supra), has application on the facts of this case. The question before the Rajasthan High Court was altogether different than the question arising in these petitions. 09. 2004 be quashed and set aside. With utmost respect to learned counsel Shri Nanavati, we fail to appreciate that how the aforesaid judgment of the Rajasthan High Court in P. G. O. Processors (supra), has application on the facts of this case. The question before the Rajasthan High Court was altogether different than the question arising in these petitions. In the present cases, the common pre-deposit order was passed by the Commissioner (Appeals) under Section 35 (F) of the Central Excise Act, 1944 on 03. 02. 2004 and the conditional stay was granted. Therefore, modification applications were submitted by the petitioners in all the four matters before the Commissioner (Appeals) which were rejected by the Commissioner (Appeals) by his impugned common order dated 20. 09. 2004 which is challenged in all these petitions. That was not the case before the Rajasthan High Court in P. G. O. Processors (supra ). Therefore, in our considered opinion, the said judgment of the Division Bench of Rajasthan High Court will have no application to the facts of this case. ( 4 ) MR. NANAVATI then tried to place reliance on the judgment of the Western Regional Bench at Mumbai of the Tribunal itself. That judgment will obviously has no binding effect on this court, that apart, the judgment was delivered in appeal and not stay applications filed under Section 35 (F) of the Act. ( 5 ) COMING to the facts of the present cases, it is clear from the first impugned common order dated 03. 02. 2004 passed by the Commissioner (Appeals) in four matters that on behalf of the petitioners, it was contended before the Commissioner (Appeals) that there was a prima facie case, as, the goods were meant for export and awaiting final inspection of goods by the exporter and therefore, the goods were entered in RG-1 register which had not reached RG-1 stage. Noting down this contention of the petitioners, the Commissioner (Appeals) clearly observed that it was not in dispute that the petitioners-appellants had cleared the goods, without payment of duty. We find from the impugned order dated 03. 02. 2004 passed by the Commissioner (Appeals) that at the time of personal hearing, it was submitted on behalf of the petitioners that they were facing financial hardships and they were going to produce evidence on that point by 17. 01. We find from the impugned order dated 03. 02. 2004 passed by the Commissioner (Appeals) that at the time of personal hearing, it was submitted on behalf of the petitioners that they were facing financial hardships and they were going to produce evidence on that point by 17. 01. 2004 but till the date of the order i. e. 03. 02. 2004 nothing was produced by them. Considering all these aspects, the Commissioner (Appeals) directed the petitioners-appellants to give pre-deposit of Rs. 5,25,399/- against the duty demanded under Section 35 (F) of the Central Excise Act within two weeks from the date of the communication of the order and report compliance within one week thereafter and on depositing the same, the recovery of all the dues were stayed. It may be stated at this stage that there is no prayer in prayer clause - 9 made by the petitioners in all these petitions against the impugned order dated 03. 02. 2004. What is challenged in all these petitions is the subsequent impugned common order dated 20. 09. 2004 passed by the Commissioner (Appeals) rejecting all the four misc. applications filed by them for modification of the pre-deposit order. It is clear from the impugned common order dated 20. 09. 2004 passed by the Commissioner (Appeals) that no new ground was made out in those four modification applications and in absence of any reasons pointed out to him, he refused to modify the earlier common stay order dated 03. 02. 2004 and directed the petitioners to deposit Rs. 5,25,399/- as ordered as pre-deposit by an order dated 03. 02. 2004 within two weeks of the receipt of the order. Admittedly, the compliance is not there, as, the petitioners are enable to deposit the said amount, consequence of which their main appeals are liable to be dismissed for noncompliance of Section 35 (F) of Central Excise Act, 1944 as ordered by the Commissioner (Appeals) in his impugned common order dated 20. 09. 2004. ( 6 ) HOWEVER, learned counsel Shri Nanavati for the petitioners submitted that the petitioners financial condition is so poor that they are not able to deposit the amount of Rs. 5,25,399/- as ordered earlier on 03. 02. 2004 by the Commissioner and in the subsequent order dated 20. 09. 2004. 09. 2004. ( 6 ) HOWEVER, learned counsel Shri Nanavati for the petitioners submitted that the petitioners financial condition is so poor that they are not able to deposit the amount of Rs. 5,25,399/- as ordered earlier on 03. 02. 2004 by the Commissioner and in the subsequent order dated 20. 09. 2004. He submitted that looking to the financial condition of the petitioners, at least, this court can exercise its discretion and reduce the pre-deposit amount of Rs. 5,25,399/- to Rs. 2,50,000/- so that their appeals can be saved from dismissal for noncompliance of Section 35 (F) of the Central Excise Act. As against that, learned standing counsel Shri Malkan, placing reliance on the Division Bench judgment of this very court in the case of Sterlite Industries (India) Ltd. V/s Union of India, reported in 2004 (7) G. H. J. Page 335, submitted that when the Tribunal has properly exercised his discretion, then this court should not interfere with such orders in its writ jurisdiction under Article 227 of the Constitution of India. Ordinarily, this court would not interfere with such discretionary orders passed by the Tribunal or Commissioner (Appeals) in exercise of their powers under Section 35 (F) of the Central Excise Act. Except bare statement made by Mr. Nanavati, learned counsel for the petitioners at the bar that the financial condition of the petitioners is not good, there is nothing on record to show that. That apart, on facts of these cases, it is clear from the impugned order dated 03. 02. 2004 passed by the Commissioner (Appeals) that this very ground was urged at the time of hearing of stay applications that their financial condition is not good but they have not produced any evidence whatsoever before the Commissioner (Appeals) till he passed the stay orders on 03. 02. 2004. ( 7 ) IN view of the above discussion, we do not see any substance or merits in all these petitions and accordingly all these petitions are dismissed. However, there shall be no order as to costs. Rule discharged. ( 8 ) AT this stage, a request is made by learned counsel Shri Nanavati for the petitioners in all these petitions to extend time by four weeks from today to deposit the amount of Rs. 5,25,399/ -. However, there shall be no order as to costs. Rule discharged. ( 8 ) AT this stage, a request is made by learned counsel Shri Nanavati for the petitioners in all these petitions to extend time by four weeks from today to deposit the amount of Rs. 5,25,399/ -. Having regard to the peculiar facts and circumstances of the case, request is granted and it is made clear that if the petitioners deposit Rs. 5,25,399/- within four weeks from today with the Commissioner (Appeals), then the Commissioner (Appeals) shall decide all his appeals on merits. .