V. Maruthamuthu vs Cegat

K.S. Bhakthavatsalam, J.—These writ petitions coming on for orders as to admission on this day, upon perusing the petitions and the

respective affidavits filed in support thereof and upon hearing the arguments of Mr. K. R. Thamizhmani for M/s. Narman Associates, advocates for

the petitioner, in each of the petitions and of Mr. K. Jayachandran, Additional Central Government Standing Counsel on behalf of the Second

Respondent the court made the following order :-

These writ petitions have been filed for waiver of pre-deposit of a duty of Rs. 6,63,948.06 and a penalty of Rs. 25,000/- on each of the petitioner

under the impugned order of the Collector of Central Excise, Coimbatore, dated 20-5-1991.

Notice of motion has been ordered by me on 20-12-1991. Mr. K. Jayachandran, Additional Central Government Standing Counsel appeared

for the respondents.

When the petitioners came before the Tribunal the Tribunal has passed the impugned order even after taking note of the fact stated by the first

respondent''s representative that the petitioner Manickam one of the petitioners herein, has only immovable property to the extent of Rs. 58,350/-

which is a joint property and other partner is financially in a worse position. In my view, the Tribunal having taken note of the fact that both the

petitioners are not financially sound, ought not to have directed them to deposit Rs. 1,00,000/- towards duty on or before 31-1-1992. It is true

that the entire penalty has been dispensed with. But I am not satisfied that the Tribunal has exercised its discretion properly in this case by asking

the petitioners to pre-deposit a sum of Rs. 1,00,000/- considering the facts and circumstances of this case that the both the petitioners are not

financially sound. It is well settled that the Tribunal has to take note of the hardship under these Central Excise and Customs Act, 1924. In my view

it has not been taken note of by the Tribunal. As such the petitioners are before me.

After hearing Mr. K. Thamizhmani, learned counsel for the petitioner and Mr. K. Jayachandran learned Addition Central Government Standing

Counsel for the respondents, I am fully satisfied with the case of the petitioners and that the impugned order has to be set aside on condition that

the petitioners deposit a sum of Rs. 20,000/- within four weeks from today. On such deposit the Tribunal shall hear the appeal of the petitioners

and dispose it of on merits. These petitions are ordered accordingly. No costs.