JUDGMENT
R.K. Gulati, J.
1. On the allegations that the petitioner had removed certain stocks of Biri without payment of duty during the period November, 1979 to January, 1982 and had thereby evaded excise duty leviable thereon to the tune of Rs. 1,77,607.43 P. the Additional Collector, Central Excise, Allahabad, vide his adjudication dated 26-12-1990, required the petitioner to pay the said amount and a penalty of Rs. 30,000/-. As against that order, the petitioner has preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, which is pending decision. The petitioner also filed an application before the appellate authority, seeking stay of the disputed amounts, which was granted in part by the Tribunal by its order dated 31st December, 1991, inasmuch as, it directed the petitioner to deposit Rs. 80,000/- only within two weeks and the balance of the amount was stayed. However, the petitioner did not make the deposit and made another application before the Tribunal for review of its order on the ground that despite his efforts he could not arrange the amount of Rs. 80,000/- which he was required to deposit and his financial condition did not permit him to make the deposit. The review application was rejected by the Tribunal by its order dated 11-6-1992 but it once again directed the petitioner to make the deposit of Rs. 80,000/- within a period of two weeks from the date of the review order. Feeling aggrieved, the petitioner has filed this Writ Petition.
2. We have heard learned Counsel for the petitioner and the Standing Counsel for Union of India, representing the respondents.
3. Learned Counsel for the petitioner urged that the Tribunal while making its earlier order dated 31-12-1991 did not address itself to the primary considerations relevant for deciding the stay-cum-waiver application. While elaborating the argument, the learned Counsel urged that the Tribunal had failed to consider whether the proceedings giving rise to the appeal were barred by time and whether the petitioner was in a position to make the payment of Rs. 80,000/-. Further, the Tribunal also failed to notice that the adjudication made by the Additional Collector, which was the subject matter of appeal, suffered from serious infirmities inasmuch as the petitioner was not afforded any opportunity of cross-examination.
4. Before proceeding to consider the submissions made on behalf of the petitioner, we may notice that the proviso to Section 35F of Central Excises and Salt Act, 1944 which empowers the Tribunal to dispense with the deposit of duty demanded or penalty levied in a particular case, inter alia says, that where in any particular case, the Tribunal is of opinion that the deposit of duty demanded or penalty levied, would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of the Revenue. Although the Proviso whittles down the rigour of deposit contemplated by Section 35F aforesaid, the judicial discretion to dispense with the requirement of deposit or stay is not expected to be exercised as a matter of course or in a routine way. The discretionary power of the Tribunal is coupled with duty. It is only in deserving and appropriate cases, where a strong prima facie case is made out, the appellate authority may exercise the discretion to stay the demand during the pendency of the appeal before it, either in whole or in part, as the circumstances of the case may warrant.
5. Now reverting to the petitioner’s case, we find that the allegations made against the Tribunal are wholly unsustainable. On the contrary, a bare perusal of the impugned order would show that the Tribunal has prima facie considered the question of limitation as well as the financial status of the petitioner. However, it is a different matter that the case put forward on behalf of the petitioner prima facie did not find favour with the Tribunal. At that stage, the Tribunal required to consider the case of the petitioner tentatively and not to deal with the questions arising in the appeal exhaustively and at length as if the Tribunal was finally disposing of the appeal itself. It is not necessary for us to record our opinion whether the prima facie view taken by the Tribunal at this stage would ultimately prevail or not. On consideration of material placed before the Tribunal, it has categorically recorded its finding that prima facie it was not satisfied that the proceedings giving rise to the appeal were barred by time or the financial position of the petitioner was not such that it could not pay the amount which the Tribunal required the petitioner to deposit.
6. The question is not whether the Tribunal ought to have waived or dispensed with the requirements of deposit in its entirety or should have stayed the whole of the disputed demand or could have asked for lesser amount to be deposited, but what requires our consideration, is whether or not the Tribunal, which dealt with the matter, has properly exercised the discretion which it possessed in the matter. Dispensing with the requirement of deposit or refusing to stay is a matter within the judicial discretion of the appellate authority governed by the relevant considerations and attending circumstances in a given case. Unless it is shown that in exercising the discretion, the authority concerned has acted unreasonably or capriciously or has ignored relevant facts, this Court would ordinarily not interfere in exercise of its power under Article 226 of the Constitution of India. Normally, the assessment whether a good prima facie case exists for grant of stay either in whole or in part, is the judicial discretion of the authority exercising the same and this Court would be reluctant to substitute its own view, even if another view was possible. We are not satisfied that the impugned order passed by the Tribunal suffers from any infirmity so as to warrant interference from this Court.
7. The argument that the petitioner was not given a right of cross-examination is equally untenable. Without intending to express any opinion, we may notice certain remarks which finds place in the order of Additional Collector :-
“… A chance of personal hearing was again given by the undersigned to the Advocate, Shri A.P. Mathur and Shri H. Ahluwalia on 22-8-1989, who said that the case could be decided on the basis of the replies submitted by their clients and the records of the personal hearing already given to them. They also said that they did not insist on any cross-examination of witnesses now, as requested earlier.”
Moreover, the right to cross-examination is not an absolute right. The question whether the petitioner was entitled to cross-examination is a question which may largely depend on the facts and it is for the Tribunal to adjudicate while deciding the appeal finally. A perusal of the impugned order shows that the Tribunal did notice the petitioner’s submission about the cross-examination which was allegedly denied to him and it is only after considering the totality of circumstances of the case and the material on record that the Tribunal passed the impugned order directing the petitioner to deposit a sum of Rs. 80,000/- and thus granting the application of the petitioner for stay-cum-waiver in part.
8. Learned Counsel for the petitioner then urged that by the order dated 11th June, 1992, the petitioner was required to make the requisite deposit within two weeks from the date the review order was passed, but that order itself was received by the petitioner on 6th of July, 1992, making it impossible for the petitioner to make the payment within the time granted by the Tribunal. Taking the last submission into consideration, we consider it appropriate and in the interest of justice to direct that if the petitioner makes the payment within one month from the date of this order, as requested by the learned Counsel for the petitioner, the same may be accepted having been made in time.
9. Subject to the above, the writ petition is rejected in limine.
