1989 (2) TMI 125 - HC - Central Excise

Appeal - Pre-deposit of duty of penalty pending appeal - Right of appeal not absolute but conditional

Summary

Issues:
Petitioner's claim for exemption from duty under Central Excises and Salt Act, 1944; Allegations of suppression of production and clandestine removal of goods; Adjudication order by the first respondent; Appeal before the Appellate Tribunal; Direction for pre-deposit of duty and penalty by the Tribunal; Challenge to the Tribunal's order on pre-deposit.

Analysis:

The petitioner, a small scale industrial unit manufacturing tread rubber, claimed exemption from duty under the Central Excises and Salt Act, 1944. The first respondent alleged that the petitioner had exceeded the exemption limit and seized incriminating documents, resulting in a demand for duty of Rs. 21,80,309.59 and penalty. The petitioner challenged the order of adjudication, leading to an appeal before the Appellate Tribunal, which set aside the order due to a violation of natural justice principles. The matter was remitted for reconsideration by the first respondent. Subsequently, a fresh order was passed finding the petitioner guilty of suppression and clandestine removal, with a demand for duty and penalties imposed.

The petitioner and partners appealed this order before the Appellate Tribunal, seeking dispensation of the pre-deposit of duty and penalty. The Tribunal directed a pre-deposit of Rs. three lakhs, citing the financial position of the petitioner. The petitioner contested this direction, arguing that their financial constraints warranted dispensation of the pre-deposit. The Tribunal's decision was based on the financial position of the petitioner, which was deemed uncomfortable, and the amount due was considered a factor for pre-deposit.

The discretion to dispense with the pre-deposit is crucial, as the right to appeal is conditional upon fulfilling such requirements. The Tribunal's decision to direct pre-deposit despite the petitioner's financial difficulties was deemed improper. The financial position of the appellant is a significant factor in determining undue hardship, as established in various legal precedents. The Tribunal's failure to consider the financial strain on the petitioner led to an erroneous exercise of discretion.

The Tribunal's order directing pre-deposit was quashed, and the appeals were to be heard on merits without the condition of non-deposit. The Tribunal was instructed to expedite the disposal of the appeals, with recovery of duty and penalty stayed pending further orders. The order of the Tribunal was set aside, emphasizing the importance of considering the financial position of the appellant in determining undue hardship and the exercise of judicial discretion in such matters.