•'"& /).^^ ^ HIGH COURT OF JUDICATURE CHHATTiSGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI S.R. NAYAK, CJ. WRIT PETiTION N0.1547 OF 2002 PETtTIONERS 1, ¥ 3. versus M/s Ashirvad Ispat Udyog Uria IndustriaJi Complex Urla, Dist. Raipur (C.G.) Through its Proprietor Vljay Chand Bothra S/o Shri Sampat Laf Bothra Aged about 49 years Vjjay Chand Bothra Urla IndustriaJ CompSex Urta, Dfst. Raipur (C.G.) S/o Shri Sampat Lai Bothra Aged about 49 years Basant Shrivastava Uria jndustrial Complex Uria, Dist. Raipur (C.G.) S/o Late Suraj Prasad Shrlvastava Aged about 34 years Ashirvad iapsit (Ryp) Pvt. Ltd, Urla Industrial Complex Uria, Dist. Raipur (C.G.) Th.rough its Dtrector Vijay Chand Bothra S/o Shri Sampat La! Bothra Aged about 49 years Cu3tom©Exoise & Gold Controf Appeilate Trlbuna! West Block No. 2, R.K. Puram, NewDelhi-110066 CommJssjoner Central Excise & Customs, Central Revenue Buitcitng, Civil Lines, Raipur (C.G.) PETITIONERS WRIT PETITION N0.1520 OF 2002 1; M/s Ashiivad Ispat (RYP) (P) Ltd. Ur!a Jndustriai Compjex Uria, Dist. Raipur (C.G.) Through Ite Djrector | Vijay Chand Bothra S/o Shri Sampat Lal Bothra Aged about 49 years l^ ^—.——;- 2. ^ .^ RESPONDENTS 3. 4. versus Vijay Chand Bothra Urla Industrial Cpmplex Urla, Dist. Raipur (C.G.) S/o Shri Sampat Lal Bothra Aged about 49 years Basant Shrivastava Uria industriai Complex Urla, DIst. Raipur (C.G.) S/o Suraj Prasad Shrivastava Aged about 34 years Jitendra Kumar Bothra UrEa (ndustrial Compiex Uria, Dist. Raipur (C.G.) S/o Vijay Chand Bothra Aged abput 28 years Customs ExcEse &. Goid Control Appellate Tribunal West BSock No. 2, R.K. Puram, NewDelhi-110066 Comml^sioner Central Excise & Customs, Centra! Revenue Buiiding, CIviI Lines, Raipur (C.G.) Preseni : Mr. P. Diwakar, Senior Advocate with Miss Sunjta Jain, Searned counsei for the petitloners. Mr.V.S. TiwarS. iearned counsef on behalf of Mr. Bhishma Kinger, learned counsel forthe respondents No. 1 and 2. ORAL ORDER (Passed on 27tn January, 2006) In these writ petitlons, the question that arises for decisjon-making Is substantialjy simllar and, therefore, the writ petitions could be heard and disposed of together for the sake of convenience. The facts are also substantially simslar. !? (2) The In In both the writ petltions are as foliov^: The Commlssioner, Central Excise & Customs, Ralpur, the 2 respondent herein,on the basis of the report submitted bythe Centra! Excise Officers ::mM ^ess^^^^^ [n ^ ^.^L 1^ Y; passed the order on 15-11-2001/13-12-2001 assessing excise duty payabie by the petiti'oners. The petitioners bejng aggrieved by the above order of the Commissioner, the second respondent herein, preferred appeaj to the Customs Excise & Gold Controi Appeilate Trlbunal under Sectjon 35 of the Centm! Excise Act (for short "the Act11) without depositing the duty demanded in terms of Section 35-F of the Act However, the petitioners moved applications for exempting them from depositing the duty demanded. The applieations wereopposed by the Department. The Appedate Tribuna! by its order dated 31-05-2002 partiy allowed the appiicatjons of the petitjoners and they were directed to deposit a sum of Rs. 6.75 Lacs, in case of the petitioner in W.P.No. 1547 of 2002 and a sum of Rs. 5.25 Lacs in case of the petitioner in W.P.No. 1520 of 2002. The petltioner belng by the above order of the Appellate Tribunai have preferred W.P. Nos. 1547 of 2002 and 1520 of 2002. This Court has not passed any interim order so far. (3) When the matter stood thus, the Appeiiate Tribunai by its order 07-08-2002 (Annexure P/11) dismissed the appeals preferred by the petitioner^ on the ground that the dlrection i33ued to them to deposSt a sum of Rs. 6.75 Lacs, in case oftho petitioner in W.P.No. 1547 of 2002 and a sum of R^. 5.25 Lac^ in ca^^ of th©pctition^r in W.P.No. 1520 of 2002., has not been compSied with and ttierefore the appeais are not maintajnable. in that view of the matter, the petitioner in W.P. No. 1547 of 2002 has made i.A. No. 6318 of 2002 for amending the wrlt petition for quashing of the order dated 07-08-2002. Simliariy, the petitioner in W.P. No. 1520 of 2002 has also made I.A. Np. 6316 of 2002 for amendment of the writ petition for quashing of the order dated 07-08- -^ '-^ 2002. That appiication was aflowed by this Court on 16-04-2003. The appilcatjon E.A. No. 6318 of 2002 fited In W.P. No. 1547 of 2002 is aitowed by me by a separate order. (4) I heard ieamed counsei for the parties and perused the order impugned in the writ petltions and other materEal papers appended to the writ petltions. Shri P. Dlwakar, iearned Sr. Counsei for the petitloner wouid strenuousiy contend that the order of the 2 respondent Is ex facie IIIegai and could not be sustalned if not for any reason but for the reason that the non-refied documents were not returned to the petitioners notwithstanding the request made by the petitioners to return them and therefore the petitioners were handicapped to put forth their defence effectively before the 2nd respondent. He woutd aiso highlighf that if th@ Court refusos the rettefs, it wouid result jn great hardship and prejudlce to the petitioners and, therefore, the intervention of the Court, sn the facts and clrcumstencss of the case, Is yery much warranted. Learned counsei for the department, per contra, would -support the impugned orders made ^nd st by the 2HU respondent and the l^1 respondent Tribunal, (5) If the provjsions of sub Section 1 of Section 35 E and the provteions of SQction 35 F read togQthQr, it would make it apparentiy ctear that tha of the duty demanded or the penalty fevied is a must jfai order to malntain an appeai under Section 35 E of the Actunjess the Commissjoner of Appeais or Appeliate Tribunai, as the case may be, in thelr discretion, dlspenses w'rth such deposit. In this case, the petitioners rightiy moved appiications befofe the Appellate Tribuna! for exemptlng them from depo^stlng the duty demanded. The Appellate Tribunal having -a^^^^i -^ constdered the ctaims and counter claims of the petitioners and the Department, in its discmtion, partiy allowed the appifcations of the petitioners and directed them to deposit a part of the duty demancjec! within a stjpulated tlme, but, admittedly the petitioners djd not compiy with that dlrection, In other wards, the petitioners have teiled to deposit even a part of the duty demanded. The resuitant position is that in iaw, they oould not maintain ihe appeal provided under Section 35 E of the Act. It also noeds to be notiood that evon this Court did not stay oporation ofthe order by the Tribunal. Simply because, the petitioners have chosen to file writ petitlons under Articie 226 of the Constltution of (ndia and they have been lying aj( these months and years in thls Court without their belng any order whatsoever, that circumstence Itseif would not be a justiflcation for the petitioners not to comply with the by the Appellate Tribuna! on thesr own appiications. (6) Aithough tt was contended by Shri P, Diwakar, learned Sr. Counsel that non-returnlng of non-retied documents was lijegaj, that circumstance would not be a justification for this Court, particularSy, at this di3tance of time to step-in under ArticSe 226 of the Con^titutJon and direct the AppoJtate Authority to hear the appoals on merit after exempting the petitionere totally from dQposit of duty demanded.An enactment incorporated by the faw-maker to safeguard the publlc intefBst could not be rendered otiose by this Court by grantlng exemption rrom the deposit of the duty demanded untess there are weighty and substeintive grountis to do so. Furthermore, It needs to be noticed that simply because In the order made by the 2nd respondent certain error or flaw, Segal or factual, has gone in to the decbion-making, that circumstance iteelf without 1^ -"^^f' anything further to show the inability of the petitioner to make the deposit, wouid not be a justification for this Court to accede to the request of the iearned counsei for the petitioners. In the drcumstence, i do notfind any good ground to grant the redef to the petltioners. The writ petittons are devold of merit and they are accordingly No costs, Sd/- Chief Justice <z»"y^y^ II •