9911796707
TMI Blog2003 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of the Appellate Authority itself must show that it had applied its mind to the issue raised by the appellant and it has been considered in accordance with the law. The expression undue hardship has a wider connotation as it takes within its ambit the case where the assessee is asked to deposit the amount even if he is likely to exonerate from the total liability on disposal of his appeal. Dispensation of deposit should also be allowed where two views are possible. While considering the application for interim relief, the Court must examine all pros and cons involved in the case and further examine that in case recovery is not stayed, the right of appeal conferred by the legislature and refusal to exercise the discretionary power by the authority to stay/waive the pre-deposit condition, would be reduced to nugatory/illusory. Undoubtedly, the interest of the Revenue cannot be jeopardized but that does not mean that in order to protect the interest of the Revenue, the Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would have to be worked out on the basis of the said Circular dated 30th October, 1996 in respect of the price list for the period from 1-7-1988 to 31-3-1998. Being aggrieved and dissatisfied, petitioner preferred the appeal under Section 35 of the Central Excise Act, 1944, hereinafter called 'the Act'. Along with the appeal, an application for waiver of the pre-deposit condition was also filed on the ground that the petitioner was not liable to pay any duty at all as Slides and Inner Frames were neither manufactured nor marketable and the petitioner had a foolproof case and was bound to succeed in appeal. The said application has been rejected vide impugned order dated 8-10-2003 holding that the petitioner-Company did not plead the issue of financial hardship nor it could plead so in view of the stature being an established company of India and there was no strong prima facie case could be made out for waiver. Hence this petition. 3. Shri Shanti Bhushan, learned Senior Counsel appearing for the petitioner assisted by Shri Yashwant Verma, Advocate, has submitted that if it is established before the Appellate Authority that the applicant has a very strong case on merit, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies, if so required by a party. Thus, it is not a fit case where the discretionary jurisdiction of a writ Court requires to be exercised and the petition is liable to be dismissed. 5. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 6. Undoubtedly, appeal is a creation of Statute and it cannot be created by acquiescence of the parties or by the order of the Court (vide United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Kesar Singh Ors. v. Sadhu, (1996) 7 SCC 711. The finding of a Court or a Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. [Vide State of Gujarat v. Rajesh Kumar Dhiman Lal Barot Anr., (1996) 5 SCC 477]. 7. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only by the legislature and conferring a Court or Authority with jurisdiction, is a legislative function. In Union of India v. Devki Nandan Agrawal, AIR 1992 SC 96, the Hon'ble Apex Court observed that the Court cannot usurp legislative functions. The Court cannot re-write the legislation for the reason that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of appeal/revision cannot be absolute and the legislature can put conditions for maintaining the same. In Vijay Prakash D. Mehta Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay [1989 (39) E.L.T. 178 (S.C.) = AIR 1988 SC 2010], the Hon'ble Apex Court held as under :- Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial or quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant...........The purpose of the Section is to act in terrorem to make the people comply with the provisions of law. 14. Similar view has been reiterated by the Hon'ble Apex Court in Anant Mills Co. Ltd. v. State of Gujarat, AIR 1975 SC 1234; and Shyam Kishore Ors. v. Municipal Corporation of Delhi Anr., AIR 1992 SC 2279. In Shyam Kishore (supra) the Hon'ble Supreme Court placed reliance upon its earlier judgment in Nandlal v. State of Haryana, AIR 1980 SC 2097, wherein it has been held that right of appeal is a creature of statute and there is no reason why the legislature, while granting the right, cannot impost conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cie merits of the appellant's case and upon being satisfied of the same, determine the quantum of deposit taking into consideration the financial hardship and other such related factors. 22. In Luxco Electronics v. Union of India Ors., 1987 (31) E.L.T. 883 (All.), it has been held that if the plea of demand being time-barred is raised before the Tribunal while considering the application for stay-cum-waiver, the issue should be considered by the Tribunal and it should be apparent from the order itself that the Tribunal had taken note of it. While deciding the said case, reliance had been placed upon the judgment of this Court in Hari Fertilizers Ltd. v. Union of India, 1985 (22) E.L.T. 301, wherein a similar view has been taken. 23. In J.N. Chemicals Pvt. Ltd. v. CEGAT, 1991 (53) E.L.T. 543, the Calcutta High Court while considering the provisions of pre-deposit of duty and penalty, observed that where the authority concerned comes to the conclusion that the appellant has a good prima facie case so as to justify the dispensation of requirement of pre-deposit of the disputed amount on duty and penalty, the authority must exercise its discretion to dispense with such requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that if any authority is permitted to act as it wants to, it will reduce the legislative will to a mere dead letter at the whim of such an authority. 26. In Bongaigaon Refinery Petrochem Ltd. v. Collector of Central Excise (A), 1994 (69) E.L.T. 193 (Cal.), the Calcutta High Court, while examining a similar issue and placed reliance upon a large number of judgments and held that the phrase undue hardship would cover a case where the appellant has a strong prima facie case. The phrase also covers a situation where there is an arguable case in the appeal. If the Appellate Authority forms the opinion that appellant has a strong prima facie case, it should dispense with the pre-deposit condition altogether. However, where it is of the opinion that the appellant has no arguable case, the Appellate Authority must safeguard the interest of the Revenue, as the same also cannot be jeopardised. 27. In Sri Krishna v. Union of India, 1998 (104) E.L.T. 305, Delhi High Court considered the issue of dispensation of pre-deposit condition and the concept of undue hardship while considering the provisions of Section 129E of the Customs Act, 1962 and Section 35 of the Act and held that the Court while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en this Court will require it to be exercised. Such like cases where two views are not possible then the condition of pre-deposit before the appeal is heard on merits, can be dispensed with. In case two views are possible on interpretation, based on conflicting judgments of the Tribunal or different High Courts in the absence of the judgment of the jurisdictional High Court then the authorities may pass the order under proviso to Section 35F of the Act keeping in view the facts of the case in hand. 30. In Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad, [1995 (78) E.L.T. 241 (S.C.) = (1995) 3 SCC 23]. The Hon'ble Supreme Court after placing reliance upon a large number of its earlier judgments, held as under: The duty of excise being on production and manufacture which means bringing out a new commodity, it is implicit that such goods must be usable, movable, saleable and marketable. The duty is on manufacture or production but the production or manufacture is carried on for taking such goods to the market for sale. The obvious rationale for levying excise duty linking it with production or manufacture is that the goods so produced must be a distinct commodit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues.............. 34. Similar view has been reiterated in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. Ors., [1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330; State of Madhya Pradesh v. M/s. M. V. Vyavsaya Co., AIR 1997 SC 993; Upadhyay Co. v. State of U.P. Ors., (1999) 1 SCC 81, deprecating the tendency of the Courts granting stay of recovery by mere filing of the case as it exposes the impairment of the public interest. 35. In view of the above, the aforesaid authorities make it clear that the Court should not grant interim relief/stay of the recovery merely by asking of a party. It has to maintain a balance between the rights of an individual and the State so far as the recovery of sovereign dues is concerned. While considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
