1995 (1) TMI 85 - HC - Central Excise

Summary

Issues:
Challenge to impugned order of Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi regarding deposit of cash and disputed duty amount in Excise Appeal; Violation of proviso to Section 35F of Central Excises and Salt Act, 1944; Failure to consider financial position of petitioner-appellant in waiver-stay application.

Analysis:
The writ petition under Article 226 of the Constitution of India was filed against the order dated 3-11-1994 by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi. The petitioners were directed to deposit a sum of Rs. 15,000/- in cash within 3 months and the disputed duty amount of Rs. 3,83,612/- within the same period in Excise Appeal No. 2009/94-NRB. The petitioners sought a writ of certiorari against the said order and a writ of mandamus to prevent the realization of any amount based on the Collector Central Excise, Meerut's order dated 14-7-1993. The issue raised was that the Tribunal did not consider the petitioner-appellant's financial position while disposing of the waiver-stay application, violating the proviso to Section 35F of the Central Excises and Salt Act, 1944.

The petitioner's counsel argued that the Tribunal failed to comply with the requirements under the proviso to Section 35F and did not consider the actual financial position of the appellant. Reference was made to various court decisions to support this contention. On the other hand, the Central Government Standing Counsel stated that the Tribunal decided the stay/waiver application based on the prima facie merit of the appeal, and the financial position was not raised before the Tribunal.

Upon examination of the impugned order and the petitioner's application, it was found that the grounds for stay included the financial position of the appellant, which was not conducive to making the demanded deposits without causing undue hardship. The Tribunal did not consider the appellant's actual financial position and offer, depriving the appellant of the benefit under the proviso to Section 35F. The Tribunal's failure to consider the financial position defeated the object of the proviso, requiring a re-evaluation of the waiver/stay application.

The High Court allowed the writ petition, quashing the impugned order of the Tribunal. The Tribunal was directed to reconsider the waiver/stay application in Excise Appeal No. 2009/94, NRB, taking into account the financial position of the appellant to provide the benefit of the proviso to Section 35F. The Tribunal was also instructed to expedite the hearing and decision of the appeal filed by the appellant along with or immediately after the stay/waiver application reconsideration.