TMI Blog2003 (10) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Company during the course of packing of cigarette sticks, for the assessment years 1986-87 to 1996-1997. Petitioner filed the reply to the show cause notice on 22-7-1998 and 8-10-1998 submitting that the "Slides and Inner Frames" neither manufactured nor a marketable commodities and, thus, could not be subjected to levy of duty. More so, as the show cause notice was based on a notification dated 30-10-1996, it could not be given effect retrospectively. The Adjudicating Officer vide order dated 26-12-2000, held that the profit margin would have to be worked out on the basis of the said Circular dated 30th October, 1996 in respect of the price list for the period from 1-7-1988 to 31-3-1998. Being aggrieved and dissatisfied, petitioner preferred the appeal under Section 35 of the Central Excise Act, 1944, hereinafter called 'the Act'. Along with the appeal, an application for waiver of the pre-deposit condition was also filed on the ground that the petitioner was not liable to pay any duty at all as "Slides and Inner Frames" were neither manufactured nor marketable and the petitioner had a foolproof case and was bound to succeed in appeal. The said application has been rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and legislature while conferring such a right has unlimited power to impose the condition for maintaining the appeal and so long the statutory provision is not held ultra vires or unconstitutional while examining its validity, the Court cannot interfere with the orders like instant. Petitioner may be having an arguable case but not such a strong prima facie case that it may warrant waiver for the reason that "Slides and Inner Frames" are manufactured and are also marketable in the sense it has potentiality of being marketable to other companies, if so required by a party. Thus, it is not a fit case where the discretionary jurisdiction of a writ Court requires to be exercised and the petition is liable to be dismissed. 5.We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 6.Undoubtedly, appeal is a creation of Statute and it cannot be created by acquiescence of the parties or by the order of the Court (vide United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Kesar Singh Ors. v. Sadhu, (1996) 7 SCC 711. The finding of a Court or a Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntioned in the section must be strictly fulfilled before an appeal can be maintained and no Court has the power to add to or enlarge those grounds. The appeal cannot be decided on merit on merely equitable jurisdiction." 12.In view of the above, it is evident that the appeal is a statutory right which can be created only by the legislature and it does not lie by acquiescence/consent of the parties or even the writ Court is not competent to create the appellate forum if not provided under the Statute. 13.Further, there can be no quarrel that right of appeal/revision cannot be absolute and the legislature can put conditions for maintaining the same. In Vijay Prakash D. Mehta Jawahar D. Mehta v. Collector of Customs (Preventive), Bombay [1989 (39) E.L.T. 178 (S.C.) = AIR 1988 SC 2010], the Hon'ble Apex Court held as under :- "Right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial or quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant...........The purpose of the Section is to act in terrorem to make the people comply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-deposit, each case has to be examined on its own merit and no hard and fast rule can be formulated. 20.In Andhra Civil Construction Co. v. CEGAT, 1992 (58) E.L.T. 184, the Madras High Court has emphasised that unless a very strong prima facie case is made out, stay should not be granted. 21.In Mehsana District Cooperative Milk P.U. Ltd. v. Union of India, 2003 (154) E.L.T. 347 (S.C.), the Hon'ble Supreme Court considered the case of dispensation of pre-deposit condition and held that the Appellate Authority must address to itself to the prima facie merits of the appellant's case and upon being satisfied of the same, determine the quantum of deposit taking into consideration the financial hardship and other such related factors. 22.In Luxco Electronics v. Union of India Ors., 1987 (31) E.L.T. 883 (All.), it has been held that if the plea of demand being time-barred is raised before the Tribunal while considering the application for stay-cum-waiver, the issue should be considered by the Tribunal and it should be apparent from the order itself that the Tribunal had taken note of it. While deciding the said case, reliance had been placed upon the judgment of this Court in Har ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wal v. State Transport Appellate Tribunal, AIR 1985 SC 516; Ambica Quarry Works etc. v. State of Gujarat Ors., AIR 1987 SC 1073]. 25.In Delhi Administration v. Manohar Lal, (2002) 7 SCC 222, the Hon'ble Supreme Court held that power vested by Statute in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest and no authority including the appropriate Government can be permitted to act in a routine course to exercise its powers at its sweet will, pleasure and whim or fancy, for the reason that if any authority is permitted to act as it wants to, it will reduce the legislative will to a mere dead letter at the whim of such an authority. 26.In Bongaigaon Refinery Petrochem Ltd. v. Collector of Central Excise (A), 1994 (69) E.L.T. 193 (Cal.), the Calcutta High Court, while examining a similar issue and placed reliance upon a large number of judgments and held that the phrase "undue hardship" would cover a case where the appellant has a strong prima facie case. The phrase also covers a situation where there is an arguable case in the appeal. If the Appellate Authority forms the opinion that appellant has a strong prim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent like that of the judgment of the Supreme Court, jurisdictional High Court or a Special Bench of the Tribunal, then to still insist upon the deposit of duty and penalty levied would certainly cause undue hardship to the assessee. Absence of the financial hardship in such a case would be no ground to decline the dispensation of pre-deposit under the proviso to Section 35F. The power to dispense with such deposit is conferred under the authorities has to be exercised precisely in cases like this type and if it is not exercised under such circumstances then this Court will require it to be exercised. Such like cases where two views are not possible then the condition of pre-deposit before the appeal is heard on merits, can be dispensed with. In case two views are possible on interpretation, based on conflicting judgments of the Tribunal or different High Courts in the absence of the judgment of the jurisdictional High Court then the authorities may pass the order under proviso to Section 35F of the Act keeping in view the facts of the case in hand." 30.In Moti Laminates Pvt. Ltd. v. Collector of Central Excise, Ahmedabad, [1995 (78) E.L.T. 241 (S.C.) = (1995) 3 SCC 23]. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are constrained to make the observations which follows as we do feel dismayed at the tendency on the part of some of the High Courts to grant interlocutory orders for the mere asking. Normally, the High Courts should not as a rule in proceedings under Article 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances. The grant of stay in such matters should be an exception and not a rule. It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy. So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings. The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings. This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues.............." 34.Similar view has been reiterated in Assistant Collector of Central Excise, Chandan Nagar v. Dunlop India Ltd. Ors., [1985 (19) E.L.T. 22 (S.C.) = AIR 1985 SC 330; State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court or authority should exercise its duty under the law to take into consideration the rights and interest of an individual. It is also clear that before any goods could be subjected to duty, it has to be established that it has been manufactured and it is marketable and to prove that it is marketable, the burden is on the Revenue and not on the manufacturer. 36.In view of the above, we are of the considered opinion that as the Appellate Authority has not addressed to itself any of the issues involved in the appeal rather has gone to the issue of financial hardship which was unwarranted and uncalled for in the fact situation of this case. The order impugned cannot be sustained in the eyes of law and we have no option but to allow this petition and set aside the order impugned. 37.Thus, the petition succeeds and is allowed. The order impugned dated 8-10-2003 is hereby set aside. The case is remanded to the Appellate Authority to decide the application for stay/waiver afresh in accordance with law, as explained above. The Appellate Authority is requested to decide the application expeditiously preferably within a period of two weeks from the date of filing of the certified c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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