9911796707
TMI Blog2019 (5) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... joint reading of the relevant parts of Section 72 and Section 74, clarifies that if the appeal is properly filed, in the sense that it is accompanied by the amount in dispute, determined by the primary assessing authority as a demand, the requirements of Section 72(7) would apply. On the other hand, if there is no compliance with Section 74(1) and the aggrieved party seeks relief by way of waiver of pre-deposit under Section 74(2), the application has to be made for that purpose setting out the grounds. This Court is of the opinion that there is no consequence of the kind that is sought to be urged with regard to Section 74(3). One of the indications of a statute being mandatory is that it is cast in imperative terms and the consequence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377;99,14,992.03/- including interest, was made. The petitioner preferred an appeal to the Excise Commissioner under Section 72 of the Act on 21.11.2017 and also applied under Section 74(2) of the Act for waiver from the requirement of depositing the amount demanded as a pre-condition for the maintainability for the hearing of the appeal. The waiver application was made along with the appeal. The waiver application was rejected by order dated 20.02.2019. The orders dated 24.10.2017 and 20.02.2019 are under challenge in this petition. During the pendency of these proceedings, as a consequence of the order dated 20.02.2019, the appeal was dismissed by an order dated 09.04.2019. 4. The petitioner s grievance is that the long pendency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion is not illegal either on that ground or on its merits. Learned counsel stressed that the order dated 20.02.2019, is made after careful consideration given to the parties and, in those circumstances the Court should not interfere with it under Article 226 of the Constitution. 6. The relevant provisions of the Act reads as follows: 72. Appeal (1) Any person aggrieved by any decision or order passed under this Act by an excise officer, subordinate to the Deputy Commissioner, may appeal to the Deputy Commissioner. (2) Any person aggrieved by any decision or order passed under this Act by the Deputy Commissioner may appeal to the Excise Commissioner. (3) Any person aggrieved by any decision or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfactory proof of the payment of the excise revenue before filing the appeal. (2) Where in any particular case, the appellate authority is of opinion that the appellant has a prima facie case in his favour and deposit of duty, fee or penalty levied would cause undue hardship to such person, the appellate authority, on an application from the appellant, may dispense with such deposit and stay its recovery subject to furnishing such security and to such conditions as he may deem fit to impose, so as to safeguard the interest of revenue: Provided that no appeal shall be entertained by the appellate authority, unless it is satisfied that such amount of excise revenue, as the appellant may admit to be due from him, has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dispute, determined by the primary assessing authority as a demand, the requirements of Section 72(7) would apply. On the other hand, if there is no compliance with Section 74(1) and the aggrieved party seeks relief by way of waiver of pre-deposit under Section 74(2), the application has to be made for that purpose setting out the grounds. In this case, the application was made on 21.11.2017 incorporating all the grounds of appeal. So in that sense, the application under Section 74(2) was pending all the while. Undoubtedly, the respondents did not decide that application within the time stipulated under Section 74(3). Learned counsel for the petitioner has urged that, given the pendency of its waiver application for more than thirty days, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 is of the considered view that it cannot be sustained. The order records that extensive arguments were made by the parties. Doubtless, the petitioner addressed the necessary grounds to establish a prima facie case, and pressed the grounds into service. The Excise Commissioner even appears to have reserved the order. In these circumstances, the so-called reasons contained in the order of 20.02.2019, do not at all satisfy the requirements of expression reasoned order . Beyond stating the obvious, that the Excise Authority decided and demanded ₹99,14,992.03 and that a 15 day delay was entailed in complying with the demand, nothing is discernible as to what appealed or did not appeal to the mind of the Excise Commissioner. Looking at t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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