TMI Blog1997 (4) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... l and the application for stay is filed on 13-8-1996. During the pendency of the appeal and the application for stay, third respondent has passed an order of detention dated 4-3-1997, directing the detention of excisable goods. Aggrieved mainly by this action of the third respondent-authority, petitioner is before this Court for the reliefs as indicated by me earlier. 3.Sri Chander Kumar, learned Senior Counsel appearing for the petitioner strongly contends that the order of detention passed by respondent No. 3 is premature and unsustainable in law since the stay petition filed by the petitioner along with the appeal is pending disposal before the appellate authority. In support of his contention, the learned Senior Counsel strongly relies upon the decision of this Court in the case of M/s. Charak Pharmaceuticals Ltd. v. Union Of India (W.A. 578/1996, decided on 14-2-1996) and also another decision of this Court in the case of M/s. Wipro Ltd. v. Asstt. Collector of Central Excise, Bangalore (W.P. 43/1996, decided on 5-1-1996). 4.In M/s. Charak Pharmaceuticals Ltd.'s case, this Court, on the facts and circumstances pleaded in that case was pleased to observe : "We have heard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offer was made to the learned Counsel to make some deposit of disputed duty to consider petitioner's request for interim relief keeping in view the observations made by Apex Court in the case of Dunlop India Ltd.'s case [1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330] and in the case of Siliguri Municipality v. Amalender Das AIR 1984 SC 653) and also the orders made by me in almost all similar cases. The learned Counsel flatly refuses to deposit any disputed duty and vehemently contends that this Court should grant unconditional orders, which I feel may not be possible and correct in the case of indirect taxation. 8.The Supreme Court in the case of Asstt. Collector of Central Excise v. Dunlop India Ltd. [1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330], was pleased to observe that various interim orders passed by the Courts have seriously Deopardised public revenue and budgets of Government forcing the State to explore further sources for raising revenues, sources which they would well leave alone in public interest. Further, the Court with lot of concern was pleased to observe that the practice of granting relief which practically gives the principal relief for no better reason than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision also clearly states that the assessee desirous of appealing against such a decision, pending appeal shall deposit with the adjudicating authority the duty demanded or the penalty levied. However, proviso provided to the Section gives discretion to the appellate authority to waive pre-deposit if he is of the opinion that the deposit of duty demanded would cause undue hardship to the appellant before him. The power to determine whether pre-deposit has to be waived or what amount of duty, if at all, is to be paid by the assessee is in the discretion of the appellate anthority. As such, when an application for waiver of pre-deposit is made along with the appeals, the appellate authority is expected to consider the same and pass appropriate orders giving out reasons after proper application of mind. This discretionary order must be made by him and by him alone. It is only when the appellate authority does not act judiciously and reasonably and when there is inordinate and unexcusable delay inspite of repeated requests and representations and does not exercise his discretion in a fair and a reasonable manner, this Court exercising its equity and discretionary jurisdiction can i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. It is only when he refuses to exercise his discretion or when there is inordinate and unexcusable delay in exercising its jurisdiction, this Court may come to the aid of the assessees and not at any rate not in every case. There seems to be a feeling that in every case the appellate authority should take up the application out of turn and decide the same just because the petitioner feels that it is not in a position to pay the disputed duty. This Court cannot expect them to decide the application taking them out of turn. Further in Bangalore, there is only one appellate authority and there are hundreds of appeals and applications filed before him by the assessees aggrieved by orders of adjudication. This Court cannot expect one appellate authority to decide all the applications filed by the assessees concerned within the time the petitioners want their applications to be disposed of and this Court cannot expect the adjudicating authority to keep off his hands from recovering the duty assessed after the expiry of the statutory time granted in the notice till the appellate authority considers and decides the application for waiver of pre-deposit save in exceptional cases. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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