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2005 (9) TMI 120 - HC - Central ExcisePrinciples of balance of convenience - Stay/Dispensation of pre-deposit u/s 35F of CEA and penalty demanded - HELD THAT:- In MEHSANA DIST. CO-OP. MILK PU. LTD. VERSUS UNION OF INDIA [2003 (3) TMI 113 - SC ORDER], the Supreme Court considered the case of dispensation of pre-deposit condition and held that the Appellate Authority must address to itself to the prima facie merits of the appellant's case and upon being satisfied of the same, determine the quantum of deposit taking into consideration the financial hardship and other such related factors. In DELHI ADMINISTRATION (NOW N.C.T. OF DELHI) VERSUS. MANOHAR LAL [2002 (8) TMI 851 - SUPREME COURT], the Supreme Court held that power vested by Statute in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest and no authority including the appropriate Government can be permitted to act in a routine course to exercise its powers as its sweet will, pleasure and whim or fancy, for the reason that if any authority is permitted to act as it wants to, it will reduce the legislative will to a mere dead letter at the whim of such an authority. A provision of appeal is a substantive right which is a statutory creation in the wisdom of the Legislature and it can also impose condition precedent, like pre-deposit for the purposes of hearing appeal. Courts should not interfere but must ensure strict compliance of the statutory provisions but if the Legislature, in its wisdom, while imposing conditions confers power to waive one or all such conditions like pre-deposit in certain condition/situations the concerned Authority is under a statutory obligation and bound to examine whether the relevant conditions are fulfilled or not so as to dispense with or waive the condition of pre-deposit - There is no doubt that when Legislature provides enabling or discretionary power upon a public authority, even though the words are permissive in character, the concerned authority is required to exercise that power reasonably on relevant considerations and not in a arbitrary or mala fide manner particularly when such exercise of power involves legal right or entitlement or enjoyment and for effectuating such right in favour of someone. The aforesaid view stands fortified in view of the fact that the Court/Tribunal/Authority has to proceed giving strict adherence to the provisions of law. The impugned judgment and order dated 29-8-2005 (Annexure-1 to the writ petition) passed by the respondent no. 4 is hereby set aside with the direction to decide the stay application afresh after giving opportunity to the parties - Petition allowed.
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