IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 24-10-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.1923 of 2003 M/s.Goyal Ispat Ltd., rep. by its Director Vinod Kothari, No.24, Padalam Sugar Mill Road, Palayanur, Maduranthagam Taluk, Kancheepuram District. .. Petitioner. Versus 1. The Customs Excise and Gold (Control) Appellate Tribunal, Haddows Road, Shastri Bhavan, Nungambakkam, Chennai. 2.The Commissioner of Central Excise (Appeals) 121, Mahatma Gandhi Road, Nungambakkam, Chennai. 3.The Assistant Commissioner of Central Excise, Chengalpattu Division, 130-B, Mudichur Road, Tambaram West. .. Respondents. Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, calling for the records relating to the Stay Order No.628 of 2002, dated 21.10.2002, in E.Appeal No.320/2002, and quash the same as illegal, arbitrary and unsustainable and further direct the 1st respondent to dispose of the E.Appeal No.320 of 2002 filed by the petitioner without insisting for any pre-deposit pending disposal of the said appeal. For Petitioner : Mr.K.Jayachandran For Respondents : Mr.S.M.Deenadayalan O R D E R Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. It has been stated that the petitioner Company is engaged in the the manufacturing of Steel Re-rolled products having a valid https://hcservices.ecourts.gov.in/hcservices/ Central Excise Registration Certificate. For the period from 1.9.1997 to 31.3.2000, the levy of excise duty was governed under the Compounded Levy Scheme, introduced under Section 3-A of the Central Excise Act. The levy of duty is determined based on the annual capacity of production of the unit, which is to be calculated based on the parameters of the machineries installed in the unit and as per the formula or method prescribed under the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. 3. It has been further stated that the Assistant Commissioner of Central Excise, by his proceedings, dated 29.8.97, had informed the petitioner that the Commissioner of Central Excise had provisionally fixed the annual capacity of production of the petitioner Company at 14091 metric tonnes. By his proceedings, dated 12.9.97, it was once again, provisionally fixed at 14187.978 metric tonnes, subject to verification of the parameters of the machineries installed in the unit. There was no verification by any expert appointed by the department. No report of any technical expert or a Chartered Engineer had been obtained. Further, the Commissioner of Central Excise, who is the competent authority, had not passed any order, finally, fixing the annual capacity of production, as contemplated under Rule 3(4) of the Hot Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. 4. It has been further stated that a show cause notice had been issued by the Superintendent of Central Excise, on 4.4.2000, proposing to demand a sum of Rs.18,13,200/-, as duty, for the period from October, 1999 to March, 2000. In spite of a detailed reply sent by the petitioner, the Assistant Commissioner of Central Excise, the third respondent herein, had passed an adjudication order, Order-in- Original No.28/2001, dated 3.9.2001, confirming the proposal, demanding Rs.18,13,200/-. Against the said order, the petitioner had filed an appeal before the second respondent. However, the second respondent had dismissed the appeal by an Order-in-Appeal No.70 of 2002, dated 28.5.2002. Aggrieved by the said order, the petitioner had filed an appeal before the first respondent. Along with the said appeal, the petitioner had filed an application for waiver of pre- deposit of the amount demanded, under Section 35-F of the Central Excise Act. However, the first respondent, without considering any of the points raised by the petitioner, had passed the impugned order, dated 21.10.2002, directing the petitioner to deposit a sum of Rs.6,00,000/-. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 5. A Counter affidavit has been filed on behalf of the second and third respondents, denying the averments made by the petitioner. 6. The main contention of the learned counsel for the petitioner is that the demand for payment of excise duty has been made without https://hcservices.ecourts.gov.in/hcservices/ finally assessing the production of the petitioner Company, by the competent authority, after giving an opportunity to the petitioner Company to put forth its case and based on the verification of the parameters of the machineries installed in the concerned Unit. 7. At this stage of the hearing of the writ petition, the learned counsel appearing on behalf of the petitioner had submitted that an interim order of stay had been passed by this Court against the impugned order, dated 21.10.2002, and it is continuing till date. The learned counsel had further submitted that it would suffice if this Court is pleased to direct the first respondent Tribunal to dispose of the appeal in E.Appeal No.320 of 2002, without insisting on the petitioner making a pre-deposit, on merits and in accordance with law, within a specified period. 8. The learned counsel appearing on behalf of the second and third respondents had insisted that the petitioner ought to make a pre-deposit, as ordered by the first respondent, by the impugned order, dated 21.10.2002, before the E.Appeal No.320 of 2002 is disposed of, on merits. 9. The learned counsel appearing for the second and third respondents had relied on the decision reported in Jaypee Rewa Plant Vs. UOI and others 2005(71) RLT 701 (Del.), wherein, it had been held that the question whether or not a pre-deposit should be waived in toto or in part is a matter which rests entirely with the discretion of the Tribunal. A Writ Court, exercising powers, under Article 226 of the Constitution of India, would not, ordinarily, interfere with the exercise of any such discretion, unless it is shown that the same has been exercised in an arbitrary manner. Just because a second view is possible on the set of facts presented to the Tribunal, on the question of waiver of pre-deposit, may not by itself be sufficient for the Writ Court to step in and modify or reverse the order passed by the Tribunal. 10. Considering the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and taking note of the facts and circumstances of the case and in view of the fact that this Court had granted an interim order of stay against the impugned of the first respondent, dated 21.10.2002, which has been continuing till date, this Court is of the considered view that ends of justice would be met to direct the first respondent Tribunal, to dispose of the E.Appeal No.320 of 2002, pending on its file, on merits, and in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order, without insisting on the petitioner making the pre-deposit. https://hcservices.ecourts.gov.in/hcservices/ With the above directions, the writ petition is disposed of. No costs. Consequently, W.P.M.P.No.2372 of 2003 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1. The Customs Excise and Gold (Control) Appellate Tribunal, Haddows Road, Shastri Bhavan, Nungambakkam, Chennai. 2.The Commissioner of Central Excise (Appeals) 121, Mahatma Gandhi Road, Nungambakkam, Chennai. 3.The Assistant Commissioner of Central Excise, Chengalpattu Division, 130-B, Mudichur Road, Tambaram West. 1 cc To Mr.K.Jayachandran, Advocate, SR.59772 Writ Petition No.1923 of 2003 GGK(CO) SRA(18/11/2008) https://hcservices.ecourts.gov.in/hcservices/