JAYAMOHANA Vs. COLLECTOR OF CENTRAL EXCISE

JUDGEMENT

(1.) The petitioner challenges the order of the respondent made on 28.4.1987. Against this order, the petitioner preferred an appeal to the Tribunal in January, 1988 under Section 35-B of the Central Excises and Salt Act, 1944, hereinafter referred to as the Act. By order dated 9.3.88, the Tribunal directed payment of Rs.10,000/- on or before 29.4.1988 even though the petitioner pleaded inability to pay the amount. When the petitioner did not comply with the order, the Tribunal dismissed the appeal on 23.6.1989 for not complying with the order under Section 35-F of the Act, as the appeal is not maintainable if the pre-deposit is not made as directed by the Tribunal. After paying the amount of Rs.7,500/- in 1990, the petitioner made an application for restoration of appeal and it was rejected. Against that order, the petitioner came before this Court in W.P. No. 14120/91 and this Court dismissed the writ petition in limine on 8.10.1991 on the ground that the Tribunal has rightly held that the appeal is not maintainable. At this stage, the petitioner has come up to this Court challenging the original order passed in 1987.

(2.) I have heard Mr. C. Natarajan, learned Counsel for the petitioner in extenso and also gone through the affidavit filed in support of the writ petition. Mr. C. Natarajan, learned Counsel for the petitioner contends that the original order passed in 1987 has not become final inasmuch as that has not been affirmed by the appellate authority. Secondly, learned Counsel for the petitioner submitted that the order is ex facie illegal and there is error apparent on the face of the records and this Court should interfere under Article 226 of the Constitution even though the appeal filed by the petitioner has not been perfected for failure to deposit the amount as directed by the Tribunal. Learned Counsel further submitted that the appeal filed by the petitioner has not been disposed of on merits under Section 35-C of the Act and as such no finality is attached to the order passed. Learned Counsel relied upon the decision reported in U.P. State v. Mohd. Nook and Rayalaseema Construction v. Deputy Commercial Tax Officer 10 STC 345 with regard to scope of Article 226 of the Constitution of India to interfere in such matters. Learned Counsel points out the difference between the wording in sections in the Customs Act and Section 35-C of the Central Excises and Salt Act and contends that the Tribunal is empowered to pass such orders thereon as it thinks fit in an appeal.

(3.) I considered the arguments of Mr. C. Natarajan, learned Counsel for the petitioner and I am not convinced that this is a fit case where I should exercise discretion in favour of the petitioner. After all the remedy under Article 226 of the Constitution is discretionary one and I do not think that this is a fit case where I should exercise discretion in favour of the petitioner. Under the Central Excises and Salt Act, an appeal is provided against the impugned order under Section 35-C of the Act. Under Section 35-F of the Act deposit of duty has to be made pending appeal. Section 35-F of the Act is in the following terms: