TMI Blog1997 (1) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... without imposing any condition. 4.Section 35F of the Central Excise Act, 1944 reads as follows : "35F. Deposit, pending appeal, of duty demanded or penalty levied - Wherein 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 Authority or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit or duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 5.Similar provisions are there under the Imports and Exports (Control) Act, 1947, Section 4M(1). In the case of Union of India Another v. M/s. Jesus Sales Corporation - 1996 (83) E.L.T. 486 (SC) = JT 1996 (3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority has also been vested with the discretion to dispense with such deposit unconditionally or on conditions and it should also apply its mind on that question like a quasi judicial authority taking into consideration all the facts and circumstances of the case including the undue hardship which may be pointed out. Same is the position in respect of discretion and its exercise in reasonable and rational manner taking into consideration the relevant facts and circumstances of a particular appeal while considering the question as to whether deposit of the amount or the penalty be dispensed with unconditionally or subject to the conditions. Ultimately the Supreme Court confirmed the order of the Appellate Authority whereby conditional stay was granted without personal hearing and reversed the Full Bench judgment of the Delhi High Court. 8.This judgment has been referred only with a view to show that such applications can be decided expeditiously. The apprehension of the Appellate Authority that large number of appeals are filed every month with applications for stay and waiving of pre-deposit, in that case hearing of the applications very often takes as much time as final disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l orders of this Court have also been cited before us where the directions have been given to dispose of the stay application within specified time and not to enforce coercive recovery during that period. If the applications for stay and waiver of pre-deposit are not decided till final hearing of the appeals anomalous situation would arise as to hearing and maintainability. Even if the Appellate Authority was to dismiss the appeal on merits that may not be in a position to render it on the ground that there is no pre-deposit and consequently that appellant may not get an opportunity to agitate the questions on merits before higher forum. 12.Section 35F provides as a condition precedent to the maintainability of an appeal that the appellant should deposit with the adjudicating authority the duty demanded or the penalty levied. Unless, therefore, the requirement of pre-deposit has been dispensed with under the proviso to Section 35F, the said pre-condition is required to be fulfilled. 13.Therefore, no appeal can be maintained, entertained or finally heard by the Commissioner (Appeals) unless Section 35F is complied with i.e. unless the duty or penalty in question is pre-deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttention by the judicial forum. 17.If the authorities fail to discharge their statutory functions, the High Court will be unnecessarily burdened with the hearing of the cases which are required to be heard by the statutory authorities constituted under the relevant Statute, and the Legislative intention may be frustrated. 18.We, therefore, direct that the Appellate Authorities shall pass appropriate orders on the stay applications expeditiously and preferably within four weeks of such application. 19.If the Appellate Authority does not decide the stay application the parties have to rush to the High Court; and the High Court may have to pass orders in such cases and give directions to hear stay application and may stay the recovery till the stay applications are decided. It would, therefore, be in the interest of everyone as well as in the interest of judicial administration that this kind of unnecessary litigation and multiplicity of litigation is avoided. 20.The coercive recovery need not be stopped by the High Court only on the ground that the Commissioner (Appeals) has not taken up any application for stay for hearing and has not decided the same. It is to be noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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