Jayamohana vs Collector of Central Excise

Bakthavatsalam, J.—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 u/s 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 u/s 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.

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 u/s 35-C of the Act and as such no finality is attached to the order passed.

Learned Counsel relied upon the decision reported in Ramaswamy Nadar Vs. The State of Madras, 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.

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 u/s 35-C of the Act. u/s 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:

Section 35-F. Deposit, pending appeal of duty demanded or penalty levied:- Where in any appeal under this Chapter, the decision or order

appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty

levied under this Act, the person desirous of appealing against such decision or order (underlining mine) shall pending the appeal, deposit with the

adjudicating authority the duty demanded or the penalty levied.

In this case, the order has been passed in 1988 by the Tribunal directing the petitioner to deposit a sum of Rs.10,000/-. The petitioner did not

comply with the condition and the result was, the appeal was dismissed for non-compliance of Section 35-F of the Act. Similar question arose

before the Supreme Court in Navinchandra Chotelal Vs. Central Board of Excise and Customs and Others, where the question was considered

under the Customs Act. The Supreme Court held that u/s 129 of the Customs Act, the appellate authority can dismiss the appeal if the order

passed is not complied with by the person concerned with regard to the deposit. The Supreme Court held that even though the power is not

expressly conferred on the appellate authority, it is competent to dismiss the appeal u/s 129 of the Customs Act. I am of the view, the same

principle applies to the facts of this case also. As the condition put forth u/s 35-F of the Act has not been complied with by the petitioner, the

appeal has been rightly dismissed by the Tribunal in 1989. When the appeal had been dismissed in 1989, the petitioner should have challenged that

order if she had wanted to challenge that order. But [she] started filing petitions to the Tribunal to restore the appeal which has been dismissed.

When it failed, the petitioner approached this Court earlier by filing a writ petition as stated above and that writ petition was also dismissed as not

maintainable. So, the result is the petitioner is trying to challenge the order of the year 1987 after a lapse of four years. I do not think, this Court

should exercise discretion in favour of the petitioner who has to fail on the ground of lapses on her part. I mean lapses in the sense that the

petitioner ought to have challenged that order of the year 1987 at the appropriate time when the Tribunal dismissed the appeal in 1989. Assuming

that the petitioner has not challenged the order impugned before me and when it has not attained finality at least in 1989 when the appeal was

dismissed by the Tribunal, she could have challenged that order. It is not as if the petitioner cannot challenge that order at that time in 1989. The

petitioner has approached this Court only in 1992. So, I do not think, the petitioner should be allowed to challenge the order of the year 1987 at

this point of time.

The question raised before me can be looked into from another angle also. The Central Excises and Salt Act provides for statutory remedies

and a hierarchy is set up under the provisions of the Act. An appeal is provided to the Appellate. Tribunal u/s 35-A of the Act. Against that order,

a reference on the question of law can be made u/s 35-G of the Act to the High Court. So, when the petitioner is aggrieved by an order, she has

rightly preferred an appeal to the Tribunal and when it has been dismissed the petitioner has approached this Court now against the original order

made in 1987. If it is allowed, I am of the view, any assessee can follow this method of not complying with the provisions of Section 35-F of the

Act, leave the matter to be dismissed for default and then agitate the order of assessment before this Court making the provisions of the Act

nugatory. In my view, no assessee should be allowed to follow such a method or to be encouraged. To entertain this writ petition at this stage will

be an encouragement to such assessees to approach this Court following the method which the petitioner has done here. Therefore, I am of the

view, the discretion under Article 226 of the Constitution need not be and should not be exercised in favour of the petitioner. Supreme Court has

repeatedly held that in matters of indirect taxation, the assesses should be allowed to exhaust all the remedies provided under the Act and this

Court should not interdict any petition u/s [article?] 226 of the Constitution. If any authority is needed see the decision of the Supreme Court in

Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, . The Supreme Court has taken the ""view

that even against the original order of assessment, this Court should be very slow to interfere, I do not sec how it can be entertained this writ

petition when the petitioner has lost the appeal before the tribunal due to her fault of not depositing the amount u/s 35-F of the Act (sic). I am not

able to agree with the learned Counsel for the petitioner that it is open to the petitioner to approach this Court even after four years from the date

of original order and also after two years from the date of the order of Tribunal. I see no justification to entertain the writ petition after such a long

delay. The decision relied upon by the learned Counsel for the petitioner in Rayalseema Constructions Vs. Deputy Commercial Tax Officer,

Mannady Division, Madras 1 and Others, is with regard to right of mandamus in recovery proceedings. The principles laid down in that decision

will not apply to the facts of this case at this point of time. In that view, I take that the petitioner has to blame herself for the delay and cannot

bypass the remedy and she cannot make the provisions of the Central Excises and Salt Act 1944 meaningless by resorting to remedy under Article

226 of the Constitution of India. There are no merits in the writ petition and the same is dismissed.