DOLLAR DETERGENTS P LTD Vs. CEGAT

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated 27-5-1998 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi whereby the petitioner's appeal has been dismissed for non-compliance of the conditions of pre-deposit under Section 35F of the Central Excise Act (hereinafter referred to as the Act').

(2.) I have heard Shri A.P. Mathur, learned Counsel for the petitioner and Shri Surya Prakash, learned Standing Counsel for the respondents at the admission stage.

(3.) By an order dated 30-12-1991 the Additional Collector of Central Excise levied a sum of Rs. 1,07,275.30 paise as excise duty and a sum of Rs. 1 lac as penalty on the petitioner. The petitioner preferred an appeal before the Tribunal. Under Section 35F of the Act, no appeal is entertainable unless the adjudicated dues are paid off. The proviso to Section 35F, however, authorises the appellate authority to waive the conditions and to prescribe such conditions for waiver as it may think fit if it is of the opinion that the pre-deposit of the dues would cause undue hardship to the appellant. The petitioner applied for waiver before the Tribunal and by order dated 30-9-1993 the Tribunal directed that only Rs. 75,000/- be paid within eight weeks. The pre-deposit of the balance was waived. Against the said order the petitioner came to this Court in writ petition No. 5 of 1994 and an interim order dated 4-1-1994 was made by this Court that the petitioner's appeal shall not be dismissed on account of non-deposit of Rs. 75,000/-. The writ petition remained pending in this Court for more than three years and ultimately by order dated 28-7-1997 the writ petition was dismissed for default. An application for restoration was then moved which was dismissed by order dated 8th January,1998. Thereafter the petitioner should have deposited the money in terms of the Tribunal's order dated 30-9-1993. The petitioner, however, did bot do so and continued to seek adjournments when the appeal was posted by the Tribunal for orders. Ultimately, when the petitioner did not deposit the amount nor appeared before the Tribunal, the appeal was dismissed for want of compliance of the proviso to Section 35F by an order dated 27-5-1998 which is challenged in this Petition. The provisions of Section 35F are mandatory and no appeal can be entertainable unless the adjudicated dues are deposited with the adjudicating authority or pre-deposit is waived wholly or partially. In the present case the Tribunal had partially waived the conditions and directed the petitioner to deposit only Rs. 75,000/-. The petitioner prolonged the matter through the aforesaid writ petition which was ultimately dismissed. Even thereafter it did not comply with the Tribunal's order and continued to *** counsel for the petitioner contended that the demand was unjustified and that the Tribunal should have waived the conditions of pre-deposit fully so that the petitioner could exercise its right of first appeal. It was also contended that the petitioner was in a very bad financial position and hence could not deposit the money.