TMI Blog1985 (3) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... venience is also found to be in favour of applicant. 3. The petitioner is a small enterpreneur engaged in activities of lami-native textile fabric and made fabric and duty paid paper. The proprietor of the firm claims to have certain textile industries for 36 years in Ethopia from where he came and invested his savings in building and construction work etc. It is claimed by petitioner that it was granted a lease on easy instalments by U.P. State Industrial Development Corporation, which also financed for purchase of machinery etc. It was also granted a licence in 1975. In October, 1982 it received a notice from Collector, Central Excise to show cause why penalty may not be imposed under Rules 9 and 170 of Central Excise Rules for contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Supreme Court in Assistant Collector Central Excise v. Dunlop India Ltd. - (1985) 1 S.C.C. 260 = 1985 (19) E.L.T. 22, this court ceased to have any jurisdiction to grant interim order in writ petitions directed against revenue matters. Reliance was placed on observations in the judgment where practice of granting interim order for mere asking was commented upon. Learned counsel urged that as observed by the Hon'ble court the Government cannot run on bank guarantees therefore the application of petitioner was liable to be rejected. Learned counsel urged that as reiterated by the court itself its desisions were binding on all courts under article 141 of Constitution of India and the declaration of law was that no interim order should be g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther consider if there was balance of convenience in favour of petitioner. 6. What is under challenge in this petition is not final order passed by Collector, Central Excise but the order of the Tribunal under section 35F of Central Excises and Salt Act. This provision requires a person desirous of appealing against to deposit with the adjudicating authority the duty demanded or penalty levied. Proviso to it which is material reads as under :- "Provided that where in any particular case the Collector (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Collector (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposit whether petitioner approached any other bank. The petitioner then filed another writ petition in this court on 10th September, 1984. The petition was disposed of by saying that petitioner should approach the Tribunal again and placed the relevant material to establish if there were any assets available with it. In pursuance of this order petitioner filed another application, copy of which has been filed as Annexure 8 to this writ petition. In paragraph 3 of the same it was stated that the land situated at Industrial Estate, Unnao, had been taken on lease with U.P. State Industrial Development Corporation, and the said property was mortgaged with State Bank of India. In paragraph 4 it was stated that the entire plant and machinery ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is not granted in favour of petitioner then the entire business which is on a small scale shall come to a stand still. The petitioner is not like Dunlop India Ltd. or big industrial magnate whose assets run in crores who has no difficulty in finding liquid assets for furnishing bank guarantee. Here is a case of small Industrial enterpreneur and on the principle laid down by Supreme Court the power under article 226 can be exercised of granting interim relief to save the assessee from grave private injury. 7. For reasons mentioned above we are of opinion that the operation of the order passed by the Tribunal directing deposit of 25 per cent cash and bank guarantee for the balance for entertaining the appeal shall remain stayed. This orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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