CHOUHAN CONSTRUCTION Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner firm through its proprietor has filed this writ petition under Article 226/227 of the Constitution of India being aggrieved by the impugned interlocutory order dated 21.9.2012 (Ann. P.1.) passed by the respondent No.2, Central Excise and Service Tax Appellate Tribunal (in short "the Appellate Tribunal"), on ST/Stay No.1129/12 in ST/A No.490/2012, whereby the prayer of the petitioner for dispensing with to deposit the entire sum made under the proviso of the Central Excise Act (in short the Act) in compliance of the order dated 14.12.2011 (Ann. P.4) passed by the Commissioner, Customs and Central Excise, Indore was allowed only in part and it/he was directed to deposit Rs.8,00,000/- within eight weeks with a further direction that subject to deposit the aforesaid, there shall be waiver of pre-deposit of balance dues during the pendency of the appeal or six months period whichever is earlier.

(2.) The petitioner's counsel Shri Yogesh Chaturvedi, after taking us through the averments of the petition as well as the papers placed on record by referring the proviso of Section 35 (F) of Central Excise Act, 1944 (In short "the Act"), argued that on filing the appeal under Section 35 of the Act against the order of the Commissioner, Customs and Central Excise the appellant is bound to deposit the sum in accordance with the order of the subordinate authority for entertaining the appeal but under the proviso the Appellate Authority has discretion to exempt the petitioner from depositing such sum and decide the appeal on merits. Under such proviso the authority is bound to pass interlocutory order in judicial manner and not in arbitrary manner. In continuation he said that according to the case of the petitioner the alleged demand was directed by the subordinate authority for the sum, which was already deposited by the petitioner. In such premises the appellate authority by invoking the extraordinary power vested under the aforesaid proviso of Section 35 (f) of the Act ought to have exempted the petitioner from depositing the entire sum but contrary to this the appellate authority has decided the question arbitrarily and directed the petitioner to deposit the aforesaid sum of Rs.8,00,000/- (Rs. Eight Lacs), with some other direction for remaining sum as stated in Ann. P.1 In such premises, the impugned interlocutory order of the appellate authority is not sustainable and prayed to dispense with and exempted the petitioner from depositing the entire sum in compliance of the conditions of the impugned order (Ann. P.1), by admitting and allowing this petition. In support of his contention he also placed his reliance on the following reported decisions :

(3.) On the other hand responding the aforesaid arguments by justifying the impugned order Ms. Anuradha Singh, counsel of the respondents, and appeared on advance copy of the petition said that the same being based on proper consideration of the factual matrix of the matter and hardship of the petitioner is in accordance with the law, it does not require any interference under the superintending jurisdiction of this Court. She further said that in view of the settled proposition of law that if any subordinate Court or the authority has passed any interlocutory order under its vested discretionary jurisdiction then the same could not be interfered under the revisional or superintending jurisdiction enumerated either under Section 115 of CPC or under Article 227 of the Constitution of India and prayed for dismissal of this petition. She also placed her reliance on the following decisions of the Apex Court :