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TMI Blog1985 (5) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector in the aforesaid Order was as to whether the value of the packing supplied by the buyer of the product manufactured by the Applicant (in this case, cylinders for nitrogen and hydrogen gas) is to be included in the computation of the assessable value in terms of S. 4 of the Act in its amended form. The Collector had apparently held that it has to be included and for the periods between January, 1981 and 23-4-1982 in respect of nitrogen gas and January 1981 and 17-3-1982 in respect of hydrogen gas, assessed the differential duty in a sum of ₹ 4,89,000 and imposed a penalty of ₹ 10,000. 3. It was submitted before us by Shri Ravinder Narain, Advocate appearing for the Applicant, inter alia, that - (a) the order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cylinders attached by him, the stay of the operation of the order is also required to be issued in the interests of justice. 4. Indisputably, the Applicant has no independent existence. It is only a unit owned by M/s. Modi Industries and has no independent existence. It is not separately registered as a company or firm. The Applicant is not a juridical person, capable of suing and being sued in its own name, being only a unit of M/s. Modi Industries Ltd., Modinagar, in the district of Ghaziabad. U.P. Without going, at this stage, into the question if the Appeal, itself, is maintainable by the Applicant as described in the cause Title, even though, as it may well be, the Applicant had been licensed on its own for purposes of excise, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited. An order under the proviso to S. 129E dispensing with the deposit does not operate as a stay of recovery of duty or penalty, proprio vigore. A stay of such recovery can be granted, additionally, if prayed for, in the exercise of the incidental or ancillary powers that inhere in the Appellate forum [AIR 1969 S.C. 430 - I.T.O. v. M.K. Mohammad Kunhi; and the Tribunal decisions in 1984 (17) E.L.T. 331=1983 (2) ETR 357 (Atma Steels Pvt. Ltd. v. Collector of Central Excise) and 1984 (16) E.L.T. 445 (C.C.E., Bombay v. Crescent Dyes Chemicals Ltd.) while examining the scope of S. 35F of the Central Excises and Salt Act, 1944, in para materia, with S. 129E of the Act]; (c) S. 129E of the Act prescribes a deposit as a condition prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India. Said their Lordships, We have come across cases where the Collection of public revenue has been seriously jeopardised and budgets of Governments and Local Authorities affirmatively prejudiced to the points of precariousness consequent upon interim orders made by Courts .... All this is not to say that interim orders may never be made against public authorities... In cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen s faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority. But since the law presumes that public authorities function properly and bona fide with due regard to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightest indication of a likelihood of prejudice to the public interest. [para 8 of the report of the Judgment]. (underlining ours) (g) if this were so in the case of a Writ Petition under Art. 226 of the Constitution of India, the question of the existence of a prima facie case loses all relevance in the context of S.I 29F of the Act. If an Appeal cannot he heard and it may even be rejected, unless the deposit is either made or dispensed with, an enquiry into the existence of a prima facie case in a consideration of undue hardship in making the deposit is not called for. It is as much as to come to a conclusion on the merits of the Appeal howsoever tentative or perfunctory a prima facie view can be; (h) in construing the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X
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