ORDER K.L. Sharma, J.
1. This is a writ petition under Article 226 of Constitution of India against the condition of pre-deposit of Rs. 7 lacs as adjudged amount of Excise duty and penalty imposed by the Customs, Central Excise and Gold (Control) Appellate Tribunal, New Delhi while disposing of the stay-waiver application filed by the petitioner in the Second Appeal filed before the aforesaid Tribunal.
2. I have heard Sri A.P. Mathur, learned counsel for petitioner as well as, Sri H.N. Singh, learned Standing counsel for the respondents and perused the material brought on record.
3. It has been contended on behalf of the petitioner that the point of extended limitation which was raised in the stay/waiver application was not at all considered and decided by the learned Tribunal, and an unjust and harsh condition of pre-deposit of Rs. 7 lacs by way of Excise duty and penalty has been imposed but the petitioner is not in a position to deposit this huge amount of cash and the learned Tribunal has not considered the financial position of the petitioner to pay this huge amount.
4. I have perused the impugned order passed by learned Tribunal dispos'ing of stay/waiver application and directing him to deposit Rs. 7 lacs in cash before hearing of second appeal. Considering the facts and circumstances of case the condition of pre-deposit of Rs. Seven lacs appears to be harsh and unjust, if the petitioner/appellant is required to deposit in cash in view of which actual financial position but the same purpose could be achieved by permitting him to furnish a security bond and the appeal can be expeditiously disposed of so as to do justice to the appellant as well as to the Revenue. But the Tribunal has unfortunately not considered the financial position for the purpose of waiver of the deposit of duty and penalty as required under Section 35F of the Central Excises and Salt Act, 1944. Therefore, the impugned order is liable to be quashed and the Tribunal has to be directed to reconsider and decide afresh the waiver/stay application.
5. Therefore this writ petition, is hereby allowed and the impugned Order No. E/332/1994-B, dated 9-12-1994 in Appeal No. E/734/1994-B1 by the learned Tribunal is hereby quashed. The learned Tribunal is directed to reconsider and decide afresh the waiver/stay application of the appellant after giving him full opportunity to show his actual financial position under proviso to Section 35F of the aforesaid Act.