Madras High Court
Micronova Pharmaceuticals Private ... vs The Collector Of Customs And Central ... on 1 November, 1994
Equivalent citations: 1994(48)ECC213
JUDGMENT
K.A. Swani, C J.
1. At the stage of admission, learned Standing Counsel for the 1st respondent has put in appearance. As the appeal lies in a narrow compass, it is admitted and heard for final disposal.
2. The appeal is preferred against the order dated 28.10.1994 passed in W.P.No.18149 of 1994. In the writ petition, the appellant sought for quashing the order dated 11.8.1994 of the 2nd respondent in SB/Stay Order No. 187/94 and to direct the 2nd respondent to dispose of the appeal No. E/SB/ 5342/ 94/MAS on merits. The learned single Judge has rejected the writ petition holding that the petitioner/ appellant has not only availed the time granted by the Tribunal, but has chosen to move the Court at the end of the period, apparently with deliberate intention to avoid compliance with the order by invoking the jurisdiction of this Court. The learned single Judge has further held that on merits, there is no case made out for dispensing with the pre-deposit.
3. The petitioner/appellant preferred an appeal against the order of the Assistant Collector, to the Collector of Customs and Central Excise (Appeals), Bangalore and the appellate authority passed the order ex parte. Against the order of the appellate authority, an appeal has been preferred before the 2nd respondent-Tribunal and along with the appeal, a stay petition was also moved to waive the pre-deposit of the duty demanded in a sum of Rs. 2,51,087/-. The Tribunal has held that there is no prima facie case on merits and accordingly it has rejected the stay application.
4. Though learned Counsel tried to contend before us on the merits of the appeal filed before the 2nd respondent, we are of the view that those contentions are to be considered by the 2nd respondent in the appeal. In this proceeding, what has to be considered is only as to whether any undue hardship is caused to the petitioner/appellant in depositing the excise duty as claimed.
5. The Tribunal has pointed out that no hardship has been pleaded. If that be so, we see no ground to interfere with the order of the 2nd respondent as well as that of the learned single Judge. However, we make it clear that the Tribunal/2nd respondent has expressed an opinion on the merits, stating that it does not find a prima facie case that there is any infirmity in the order appealed against. We are of the view that such an expression in a proceedings under Section 35-F of the Act is not warranted. Further, it is likely to affect the decision in the main matter, which has to be arrived at after hearing the parties in detail on merits.
6. It is also brought to our notice that as the deposit was not made on or before 31.10.1994, the appeal was dismissed by the Tribunal-2nd respondent on 31.10.1994 itself. We are of the view that the 2nd respondent ought to have waited till the end of 31.10.1994, having granted time till 31.10.1994. Though that order is not challenged before us, in the interests of justice, we consider that we must suo motu exercise our jurisdiction in the matter. We have also heard counsel on both sides on this issue. We are of the view that the Tribunal has erred in dismissing the appeal on 31.10.1994. Therefore, the order of the Tribunal in dismissing the appeal is liable to be interfered with. Therefore, we dispose of this appeal in the following terms:
(1) The orders passed by the 2nd respondent in order. E/SB/Stay/3353/94 in A.No. E/SB/5342/94/ MAS dated 11.8.1994 and the order passed in the appeal in A.No. E/SB/5342/94/MAS dated 31.10.1994 are set aside;
(2) The appeal A.No. E/SB/5342/94 MAS on the file of the 2nd respondent will stand restored to its original file;
(3) that the appellant is granted time to deposit the sum of Rs. 2,51,087/- on or before 15th December, 1994.
7. On such deposit being made the 2nd respondent shall hear and dispose of the appeal on merits and in accordance with law, within two months from the date of deposit, without reference to the observations made in para 4 of its order dated 11.8.1994.
8. The writ appeal is disposed of accordingly. There will be no order as to costs.