S. Ravindra Bhat, J.

Cm Appl. 18056/2019

Exemption allowed, subject to all just exceptions.

The application is disposed of.

W.P.(C) 2402/2019 & CM Appl. 17968/2019 (stay)

Issue notice. Mr. Ramesh Singh, Standing Counsel accepts notice.

2. The petitioner is aggrieved by an order rejecting its application for waiver/exemption from the requirement of pre-deposit, made in terms of Section 74(2) of the Delhi Excise Act, 2009.

3. The facts are that the petitioner has a warehouse and is holder of the license L-1 issued by the respondent/Excise Authorities. He was subjected to proceedings whereby, demand pursuant to the order of the Asstt. Commissioner of Excise, dated 24.10.2017 to the tune of Rs. 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 of the application seeking waiver, was contrary to Section 74(3) and that the subsequent action of the excise authorities in rejection and consequent demand of the amounts, threatening attachment of its property, to recover the dues, according to the land revenue laws, is arbitrary to say the least. The petitioner also relies on Rule 56(d), which deals with leftover stock of liqour. He submits that as a warehouse if any stock is in its possession, that is attributable to the vendor or manufacturer and the appropriate consequence of such leftover stock would be destruction of the stock and not generation of demand as in this case.

5. Learned counsel for the Revenue/respondent urged that this Court should not interfere with the orders. Firstly, he submits that the mandate of the provision under Section 72(7) which enacts that when an appeal is filed, it places an obligation on the concerned appellate authority or forum to decide the appeal within a year, failing which such an appeal would be allowed; cannot be applied in the circumstances of this case. It is urged that the proceedings, by way of an appeal is not properly instituted, until and unless there is compliance under Section 74(1) i.e. in terms of the deposit of the demanded amount. Only then can the relief be sought by the aggrieved party. On application for waiver of pre-deposit, it is contended that, although the waiver application was decided beyond the time prescribed under Section 74(3) per se, the decision 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 order passed under this Act by the Excise Commissioner may appeal to the Financial Commissioner.

(4) Such appeal shall be filed within thirty days from the date of communication of such decision or order together with self attested copy thereof:

Provided that a further period of thirty days may be allowed if the appellant establishes that sufficient cause prevented him fro