Karnataka High Court Commissioner Of Central Excise vs Mc Dowell And Co. Ltd., Rep. By Its ... on 13 April, 2005 Equivalent citations: 2005(101)ECC609, 2005(186)ELT145(KAR), ILR2005KAR2613, 2005 AIR KANT. H. C. R. 1621, (2005) 186 ELT 145 (2005) 123 ECR 316, (2005) 123 ECR 316 ORDER D.V. Shylendra Kumar, J. 1. The orders of the Tribunal which is functioning under section 35B of the Central Excise Act, 1944 (for short 'the Act') and passing orders in exercise of powers under the proviso to Section 35F of the Act have always been the subject matter of controversy and subject for further litigation to approach the High Court by invoking the provisions of Articles 226 and 227 of the Constitution of India and on an occasion or two, even the Supreme Court. 2. While more often than not, it is the Assessee who is normally aggrieved by the orders passed by the Tribunal either granting partial waiver of the amount required to be deposited for maintaining the appeal before the Tribunal or in some cases notgranting any waiver, this time the revenue is before this court questioning the legality of one such order passed by the Tribunal where under the Tribunal has granted full waiver of the requirement of the deposit of the amount, amount that is the subject matter or dispute in the appeals pending before it, in terms of the Order dated 13.12.2004. The impugned order is one passed in common in several appeals, pending before the Tribunal, namely, Excise Appeal Nos. 590591/2004 and Excise Appeal No. 1051/2004. 3. The value of the subject matter in appeal Nos. 59091/2004 is said to be of a sum of Rs 35 crores and the value of the subject matter in appeal No. 1051/2004 is said to be Rs 29 Crores. It is mainly disputing this liability which the respondent was required to meet in terms of the adjudication orders passed by the Commissioner of Central Excise who had adjudicated certain show cause notices that had been issued to the respondent No. 2, inter alia, apprising the respondent No. 2 that it is liable for payment of such excise duty for the period from April 1997 to March 2001, in all, totaling Rs 35 Crores in terms of the order dated 28.2.2004 and the liability for the period April 2001 to March 2004 amounting to Rs. 29 crores in terms of the order of the Commissioner dated 12.7.2004. 4. It is such liability that had been called in question in appeal Nos. 590 & 591/2004 and 1051/2004. In so far as Appeal Nos. 590 & 591/2004 are concerned, the respondent had filed an application for dispensation of the predeposit amount invoking the proviso to Section 35F of the Act and such an application has come to be ordered by the Tribunal in terms of its Order dated 10.8.2004. That was an order that had been passed in respect of the amount required to be deposited for maintaining the appeal Nos. 590 & 591/2004 and the tribunal in terms of the order dated 10.8.2004 has called upon the respondent to predeposit a sum of Rs. 25 crores within a period of four months form the date of the order and report compliance by 20.12.2004, while the balance of the duty and penalty under the impugned order were waived from deposit and recovery also was stayed pending disposal of the appeals. 5. The Respondent No. 2 had come up with further application, one application for raising additional grounds in the two pending appeals, namely, appeal Nos. 590 & 591/2004 and a further application praying for modification of the earlier interim order dated 10.8.2004. The applications were numbered as Misc. Application Nos. 729 and 730 of 2004 for modification and Misc. Application No 851/2004 for raising additional grounds. Respondent had also filed an application for dispensation of the predeposit in the appeal for the subsequent period i.e. in appeal No. 1051/2004 through the stay application No. 633/2004. 6. The Tribunal has disposed of all these applications, namely, Misc. Applications that had come to be filed in pending appeal Nos. 590 & 590/2004 and stay application in appeal No 1051/2004. The Tribunal under the order, while modified its earlier order dated 10.8.2004 that had been passed under the proviso to Section 35F of the Act and permitted total waiver of the requirements of predeposit, following such an order allowed the stay application filed in appeal No. 1051/2004 and also permitted total waiver of the predeposit of a sum of Rs 29 crores, subject matter of appeal in A No. 1051/2004. 7. The net result of this order in the several applications is that the Tribunal has granted total waiver of requirement of predeposit of a sum of Rs 64 crores in all and the revenue feeling greatly at loss for having suffered such an order, has approached this court invoking jurisdiction under Articles 226 and 227 of the Constitution of India. 8. It is no doubt true that these writ petitions present a new dimension of the good old problem of the manner