Eacland Combines vs Collector of C. Ex.

This writ petition coming on for orders as to admission on this day upon perusing the petition and the affidavit filed in support thereof and upon

hearing the arguments of Mr. C. Natarajan, Advocate for the petitioner, and of Mr. K. Jayachandran, Additional Central Government Standing

Counsel on behalf of the Respondent, the Court made the following order :-

The writ petition is against the order of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in an application for stay and

waiver of the deposit as a condition for filing an appeal.

The order against which the appeal was filed was made in August, 1990. The duty imposed by the Collector amounted to Rs. 7,59,501.28. The

Tribunal, while considering the financial hardship of the petitioner, says that no such plea was made and when a question was asked to the counsel,

he did make a plea, but did not have supporting evidence. On the question of limitation, the Tribunal has taken the view that the case that there was

no wilful misstatement or suppression of facts, cannot be Prima facie, accepted. Therefore, the period of limitation for the show cause notice dated

7-12-1989 could be beyond six months.

Mr. Natarajan, learned Counsel for the petitioner says that to certificates were placed before the Tribunal regarding the financial hardship. One

is the certificate from the State Bank of India, Travancore and another is certificate from the Auditors. According to the learned Counsel, the

petitioners are running the factory on day-to-day basis on certain over-draft facilities afforded by the Bank. The Certificate of the State Bank of

Travancore refers to the credit facilities enjoyed by the petitioner-company. The certificate of the Auditors shows that as per the balance sheet on

31-3-1990, the net capital is only Rs. 2,83,382.89 and the fixed assets is only Rs. 1,09,299/-. It is rather difficult for me to surmise whether these

documents were taken note of by the Tribunal before directing payment of the amount as a condition for taking the appeal on file. One cannot

blame the Tribunal because the counsel did not make a plea on the basis of financial hardship and the Tribunal says that there was no supporting

evidence. Whatever that may be, inasmuch as the documents have been produced before me and the merits of the case relate to a plea of

limitation, one need not be very harsh on the petitioners while exercising the discretionary powers under S. 35F of the Central Excise and Salt Act,

1944. Accordingly, in modification of the order of the Tribunal, I direct the Petitioner to deposit a sum of Rs. 1,50,000/- within twelve weeks from

today. In other respects, the amounts demanded shall stand waived till the disposal of the appeal. The writ petition is ordered in the above terms.

There will be no order as to costs.