9911796707
TMI Blog1994 (8) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... rected not to realise the demand made by the Collector, Central Excise. 2.Although, the copy of the writ petition was served on the Standing Counsel for Union of India on 18th August, 1987, no counter affidavit has so far been filed. The petition was listed for hearing and in spite of the service of an individual notice dated 25th July, 1994 on the Senior Standing Counsel, no one appeared for the respondents when the case was taken up for hearing on 27th July, 1994. 3.I have heard the learned counsel for the petitioner. 4.The petitioner's case is that it was carrying on business of manufacturing goods on job charges as well as on its own account at the unit situated at Khatauli in the District of Muzaffarnagar. The petitioner has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 985 directing the petitioner to furnish a bank guarantee for a sum of Rs. 2,25,000/- to the satisfaction of the Collector, Central Excise within six weeks. The petitioner contends that in spite of its best efforts it could not arrange a bank guarantee. On 6th June, 1986, he moved another application before the Tribunal for modifying the earlier order dated 1st January, 1985. The Tribunal passed an order dated 17th June, 1986 dismissing the said application for default. The petitioner then moved another application dated 21st July, 1986 for rectification. The Tribunal disposed of the application by an order dated 23rd October, 1986 whereby it declined to relax the requirement of furnishing of a bank guarantee but allowed the petitioner three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnish bank guarantee for the amount of the duty i.e. Rs. 2,25,000/- after reducing therefrom a sum of Rs. 80,000/- which according to the petitioner was in excess because of a calculation mistake. The Tribunal observed that having carefully considered the matter it was of the opinion that the insistence on pre-deposit of the demand would cause undue hardship to the appellant. It, therefore, ordered the appellant to furnish a bank guarantee for a sum of Rs. 2,25,000/-. 7.The petitioner could not comply with the condition and he moved another application before the Tribunal for modification of the aforesaid order. This application was moved on 6th June, 1986 i.e. after about 11/2 years. It was contended that in spite of best efforts the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire investment in the petitioner's unit was to the tune of Rs. 3,00,000/-. The banks do not issue bank guarantee without requiring the party concerned to deposit an equivalent amount in Fixed Deposit Receipt which are pledged as a security for the issuance of the bank guarantee. Therefore, the Tribunal's order directing the petitioner to furnish the bank guarantee of Rs. 2,25,000/- meant that the petitioner should deposit Rs. 2,25,000/- in a bank so that the bank could issue a bank guarantee in favour of the excise authority. The Tribunal had recorded a finding that pre-deposit of the demand would cause undue hardship to the appellant and the order requiring it to furnish a bank guarantee was not in consonance with the finding. No doub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osit so that the petitioner who was in a bad financial position and was unable to comply with the terms of Section 35F could avail the right of appeal. In a hard case like this the insistence of pre-deposit of the duty and penalty demanded may frustrate the very right of appeal as has happened in this case, the petitioner's appeal having been ultimately dismissed on the ground that he has not been able to furnish the bank guarantee as aforesaid. 10.Though the petitioner's conduct is not free from laches yet in the circumstances mentioned above, I am of the view that the petitioner's right to appeal should not be allowed to be frustrated because of his financial constraints. This writ petition was filed in the year 1987 and the department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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