THE TRIBUNAL MUST PROPERLY CONSIDER THE APPLICANT'S FINANCIAL POSITION, INCLUDING UNSECURED LOANS, AND THE EXISTENCE OF A PRIMA FACIE CASE WHEN DETERMINING WHETHER TO WAIVE PRE-DEPOSIT REQUIREMENTS UNDER SECTION 35F OF THE CENTRAL EXCISE ACT, 1944.

SAMARESH BANERJEA, J.

( 1 ) THE Petitioner No. 1 which is a partnership firm and Petitioner No. 2 who is a partner of the said firm have challenged in the instant Writ Application the validity of the Order dated 5th November, 1997 and February 11, 1998 passed by Customs Excise and Gold (Control) Appellate Tribunal being the Respondent No. 2, on the application made by the petitioners before the said Tribunal for stay of realisation of the Excise duty and penalty pending the hearing of the appeal preferred before the Tribunal.

( 2 ) BY the order dated November 5, 1997 the Tribunal being of the view that the petitioners do not have a strong prima facie case and are not in a very poor financial position disposed of the application for stay by directing to pre-deposit an amount of Rs. 20 lakhs towards the Excise duty and Rs. 50,000/-towards penalty by each of the appellant before the Tribunal. It may be recorded that a sum of Rs. 40,10,177. 00 p. was claimed as Excise duty and Rs. 5 lakh was imposed as a penalty on each of the appellant by the Adjudicating Authority.

( 3 ) AFTER the passing of the said order the present petitioners applied before the Tribunal for modification of the Order dated 5th November, 1997 inter alia on the ground that the Tribunal while passing such order has not properly applied its mind, inasmuch it totally overlooked the unsecured loan of Rs. 56. 50 lakhs and accordingly did not take into account the same while considering the current liabilities of the petitioners.

( 4 ) BY the Order dated 11th February, 1998 the Tribunal had dismissed the aforesaid application for modification and merely extended the time for making such pre-deposit.

( 5 ) BEFORE going into the merits of the challenge of the petitioners of the aforesaid two orders, it is first of all necessary for this Court to dispose of the preliminary points raised by the respondents viz. , that the present Writ Application is not at all maintainable. It has been submitted by the learned Counsel appearing for the respondents that the Central Excise Act, 1944 itself provides that an appeal will lie from any order of such Tribunal to the Hon'ble Supreme Court and in such view of the matter without preferring such appeal the petitioners could not have invoked the Writ jurisdiction of this Hon'ble Court.

( 6 ) ATTENTION of the Court has been drawn to Section 35l (b) of the Central Excise Act, 1944 which provides an appeal will lie to Supreme Court from any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. It has been submitted that the aforesaid provision will clearly indicate that an appeal will lie to the Supreme Court not only against the final order passed by the Tribunal but against all other orders including an order relating to pre-deposit.

( 7 ) SPECIAL emphasis has been placed by the learned Counsel appearing for the respondents on the expression used in Clause (b) of Section 35l viz. 'among other things'. It has been submitted that such expression used clearly indicates that apart from the final order, against all other orders as well an appeal will lie to the Supreme Court. Reliance has been placed in this connection on the decision of Bombay High Court in the case of Colour-Chem Limited v. Union of India where three Judges' Special Bench of the Bombay High Court has held inter alia that since an appeal is provided against the impugned order of the Tribunal to the Supreme Court it was open to the aggrieved person to by-pass the remedy provided by the Legislature by way of appeal to the Supreme Court and come to the High Court invoking the writ jurisdiction challenging an order of the Tribunal.

( 8 ) THE learned Counsel appearing on behalf of the Writ Petitioner, on the other hand, has submitted, inter alia, that the language of Section 35l of the said Act really indicates that un

Click Here to Read the rest of this document