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TMI Blog2019 (5) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Counsel accepts notice. 2. The petitioner is aggrieved by an order rejecting its application for waiver/exemption from the requirement of pre-deposit, made in terms of Section 74(2) of the Delhi Excise Act, 2009. 3. The facts are that the petitioner has a warehouse and is holder of the license L-1 issued by the respondent/Excise Authorities. He was subjected to proceedings whereby, demand pursuant to the order of the Asstt. Commissioner of Excise, dated 24.10.2017 to the tune of Rs.99,14,992.03/- including interest, was made. The petitioner preferred an appeal to the Excise Commissioner under Section 72 of the Act on 21.11.2017 and also applied under Section 74(2) of the Act for waiver from the requirement of depositing the amount dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be applied in the circumstances of this case. It is urged that the proceedings, by way of an appeal is not properly instituted, until and unless there is compliance under Section 74(1) i.e. in terms of the deposit of the demanded amount. Only then can the relief be sought by the aggrieved party. On application for waiver of pre-deposit, it is contended that, although the waiver application was decided beyond the time prescribed under Section 74(3) per se, the decision is not illegal either on that ground or on its merits. Learned counsel stressed that the order dated 20.02.2019, is made after careful consideration given to the parties and, in those circumstances the Court should not interfere with it under Article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief prayed for in the appeal shall be deemed to have been granted. xxxx xxxx xxxx xxxx 74. Deposit of excise revenue before filing appeal - (1) Where the decision or order appealed against under this Chapter relates to any duty, fee or penalty levied under this Act, the person desirous of appealing against such decision or order shall produce satisfactory proof of the payment of the excise revenue before filing the appeal. (2) Where in any particular case, the appellate authority is of opinion that the appellant has a prima facie case in his favour and deposit of duty, fee or penalty levied would cause undue hardship to such person, the appellate authority, on an application from the appellant, may dispense with s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one year and specifically enacts through the proviso that in case the appeal is not decided within the stipulated time, it is deemed to be allowed. 8. A joint reading of the relevant parts of Section 72 and Section 74, clarifies that if the appeal is properly filed, in the sense that it is accompanied by the amount in dispute, determined by the primary assessing authority as a demand, the requirements of Section 72(7) would apply. On the other hand, if there is no compliance with Section 74(1) and the aggrieved party seeks relief by way of waiver of pre-deposit under Section 74(2), the application has to be made for that purpose setting out the grounds. In this case, the application was made on 21.11.2017 incorporating all the grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver application should, if possible, be taken within a month. 9. In the light of the above discussion, the per se maintainability of the application or the ground on relief, which is urged by the petitioner, cannot be accepted. At the same time, the Court after examining the merits of the order dated 20.02.2019 is of the considered view that it cannot be sustained. The order records that extensive arguments were made by the parties. Doubtless, the petitioner addressed the necessary grounds to establish a prima facie case, and pressed the grounds into service. The Excise Commissioner even appears to have reserved the order. In these circumstances, the so-called reasons contained in the order of 20.02.2019, do not at all satisfy the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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