Excel Rubber Products vs Addl. Collector of C. Ex. and Customs

K.T. Thomas, J.—This Original Petition is in challenge of Ext. P8 order passed by the second respondent under the proviso to Section 35F of the Central Excises and Salt Act, 1944. The demand made on the petitioner by the first respondent was in a sum of Rs. 76,544.40, as per Ext. P1 Order. The petitioner challenged Ext. P1 order before the second respondent by filing Ext. P2 appeal. It was during the pendency of the said appeal that an application for waiving the requirement of pre-deposit was submitted, on which Ext. P8 order has been passed. As per Ext. P8, petitioner is required to pay a sum of Rs. 20,0000/- on or before 31-7-1989.

It is contended by the learned Counsel for the petitioner that the Tribunal has not considered the abject financial stringency of the petitioner, even though Ext. P8 order mentions that the Departmental Representative has instructions to the effect that the petitioner firm has only 25 cents of land at Kothamangalam in Kerala valued at Rs. 25,000/- approximately and the liability of the firm is more than Rs. 6.44 lakhs. It was contended that default in making the pre-deposit will render the appeal not maintainable. I cannot accept the said contention in view of the judgment of this Court dated 20-7-1989 in O.P. 1573/89. This Court held in the said judgment that an appeal filed u/s 35B has to be disposed of u/s 35C either by confirming or modifying or annulling the order appealed against or by returning the case back to the authority which passed the decision. Non-compliance with the requirement of pre-deposit envisaged in Section 35F will not effect the maintainability of the appeal, as held by this court in the said judgment.

I, therefore, direct the second respondent to dispose of Ext. P2 appeal on merits whether or not the petitioner complies with the direction contained in Ext. P8.

Original Petition is disposed of in the above terms.

Issue carbon copy on usual terms.