Madras High Court
Varuni Chemicals (P) Ltd. vs Collector Of Central Excise, Madurai on 10 March, 1994
Equivalent citations: 1994(71)ELT678(MAD)
ORDER
1. By consent the writ petitions themselves are taken up for final disposal.
2. W.P. No. 14229 of 1993 is to quash the order of the second respondent, dated 2-11-1992, in and by which the Tribunal directed the petitioner to make a pre-deposit of rupees ten lakhs towards the tax and a sum of Rs. 25,000/- towards penalty and similar amounts in respect of certain others in respect of penalty, on or before 31-12-1992, as a condition for taking the appeal on file and hearing the same on merits. W.P. No. 14230 of 1993 is for the issue of a Writ of certiorari to quash the order of the second respondent, dated 31-12-1992, in and by which the Tribunal recorded that the amount directed to be paid under the order, dated 2-11-1992, had not been paid, and therefore the appeal was liable to be dismissed, and accordingly dismissed the appeal. A few facts may be stated before disposing of these two writ petitions. While making an order on 2-11-1992 the second respondent had taken into account the rival submissions and came to the conclusion that the order of the first respondent, Collector of Central Excise, was prima facie a correct order. Secondly, the Tribunal held that looking into the financial aspects of the case, as seen from the balance-sheet filed by the petitioner, a proper order to be passed in the application for waiver of pre-deposit was to direct payment of rupees ten lakhs towards tax and the other amounts as referred to earlier. After this order, on 30-12-1992 a petition was filed stating that the amounts directed by the Tribunal in relation to the penalty portion of the order of the first respondent had been complied with. It was, however, stated that the petitioner was not in a position to deposit the sum of rupees ten lakhs and they are making arrangements to negotiate with the Bank for payment of the said sum of rupees ten lakhs. They, therefore, sought for extension of time till 31-1-1993 to make the pre-deposit. They also filed an application for adjournment of the case, which was to be taken up on 31-12-1992. There was a telegram informing the Tribunal that the Consultant was not doing well, and therefore they could not attend the hearing on 31-12-1992. Even so, on 31-12-1992 the second Respondent Tribunal had proceeded to pass the order, dismissing the appeal for non-compliance of its earlier order, dated 2-11-1992.
3. One of the arguments of the learned counsel for the petitioner is that the petitioner had time up to 31-12-1992, and therefore the Tribunal was not justified in dismissing the appeal on 31-12-1992 itself. Secondly, it is argued that certain vital considerations were not taken into account before fixing the quantum of amount to be deposited by way of pre-deposit. Learned counsel, therefore, refers to a recent judgment of a Division Bench of this Court, dated 15-11-1993 in Collector of Central Excise, Madurai-2 v. Coronation Litho Works [1994 (69) E.L.T. 238 (Madras)]. Certainly, the Tribunal could not have considered this decision because the order of the Tribunal was on 2-11-1992. That apart, I am not inclined to permit the petitioner to canvass the correctness of the order, dated 2-11-1992, because at least two petitions had been filed, one on 30-12-1992 and another on 29-1-1993 seeking extension of time to pay the amount as per the order of the Tribunal, dated 2-11-1992. It is well-known that orders made under Section 35F of the Central Excises and Salt Act, 1944, are more in the nature of an interim order based on prima facie aspects of the case. It will not be proper for this Court to review these orders, especially when the petitioner had accepted the order and sought for extension of time for payment of the amount. In this view of the matter, I am not inclined to interfere with the order, dated 2-11-1992 made by the second respondent Tribunal.
4. The only further question to be decided is whether the petitioner should be given further time to make the deposit. On this aspect of the case. I have no doubt, in my mind that some indulgence should be shown in favour of the petitioner on the facts of this case. Consequently, the order, dated 31-12-1992 made by the second respondent is set aside. The petitioner is given time to comply with the order, dated 2-11-1992 on or before 30-4-1994. If the amounts are deposited by 30-4-1994, the second respondent is directed to take up the appeal and dispose of the same on merits. If the amounts are not deposited by 30-4-1994, the appeal of the petitioner shall stand dismissed. These two writ petitions are ordered in the above terms. No costs.