TMI Blog1998 (7) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ending the hearing of the appeal preferred before the Tribunal. 2.By the order dated November 5, 1997 the Tribunal being of the view that the petitioners do not have a strong prima facie case and are not in a very poor financial position disposed of the application for stay by directing to pre-deposit an amount of Rs. 20 lakhs towards the Excise duty and Rs. 50,000/- towards penalty by each of the appellant before the Tribunal. It may be recorded that a sum of Rs. 40,10,177.00 p. was claimed as Excise duty and Rs. 5 lakh was imposed as a penalty on each of the appellant by the Adjudicating Authority. 3.After the passing of the said order the present petitioners applied before the Tribunal for modification of the Order dated 5th November ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n will clearly indicate that an appeal will lie to the Supreme Court not only against the final order passed by the Tribunal but against all other orders including an order relating to pre-deposit. 7.Special emphasis has been placed by the learned Counsel appearing for the respondents on the expression used in Clause (b) of Section 35L viz. `among other things'. It has been submitted that such expression used clearly indicates that apart from the final order, against all other orders as well an appeal will lie to the Supreme Court. Reliance has been placed in this connection on the decision of Bombay High Court in the case of Colour-Chem Limited v. Union of India reported in 1998 (98) E.L.T. 303 (Bom.) where three Judges' Special Bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd hence the Legislature used such expression "among other things". It has been further submitted that position would be clear when Section 35B of the Act is examined, which provides, when an appeal will lie to the Appellate Tribunal. It has been further submitted that Section 35C of the Act also clarifies such position. It has been further submitted that judgment of the Bombay High Court is not at all applicable in the instant case. Attention of the Court has also been drawn to the decision of the Supreme Court in paragraphs 27, 90, 91, 92, 93 and 99 in Chandra Kumar's case reported in 1997 (92) E.L.T. 318 (S.C.) = AIR 1997 SC 1125. 9.Having heard the learned Advocate appearing for the parties on such question, I am unable to accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid Section. Had it been the intention of the Legislature to make every order of the Tribunal including interlocutory order appealable to the Supreme Court, it was not at all necessary for the Legislature to provide that the appeal to the Supreme Court will lie against any order having a relation of rate of duty of the excise or the value of goods for purposes of assessment, thereby specifying the orders against which an appeal will lie before the Supreme Court, and it would be sufficient to provide that an appeal will lie to the Supreme Court against all decisions and orders of the Tribunal. But the Legislature in its wisdom has not done so, but has specified the situation when appeal will lie to the Supreme Court. The submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt from the order of the Appellate Tribunal) order passed by the Appellate Tribunal or Appeal shall be final. 15.It will, thus, appear from the said scheme that orders passed under Section 35F of the Act are not at all appealable. 16.The decision of the Special Bench of the Bombay High Court upon which reliance has been placed need not engage our attention any further in view of the fact, in the said case, the Bombay High Court was considering a case where a final order of the Tribunal and not an order of pre-deposit was sought to be challenged before the Bombay High Court invoking its writ jurisdiction. 17.For the reasons aforesaid, I am of the view that the present writ petition is maintainable. 18.Coming now to the merits of cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided under Section 35F itself, whether the pre-deposit will cause undue hardship and in determining question. Consideration of the amount of unsecured loan cannot be ruled out and is a relevant consideration. 22.On the question of prima facie case although it has been observed by the Tribunal that the appellant does not have a strong prima facie case, it does not appear to this case, that there has been a proper application of mind in that respect by the Tribunal. 23.Since now it is well settled that the existence of a prima facie case is also relevant consideration to be taken in consideration while determining the question whether pre-deposit will cause undue hardship, it is certainly necessary for the Tribunal to apply its mind to su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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