ORDER M.C. Agarwal, J.
1. By this petition under Article 226 of the Constitution of India the petitioner challenges an order dated 16th June, 1995 passed by the Customs, Excise & Gold (Control) Appellate Tribunal, North Regional Bench, New Delhi in Appeal No. 665/95-NRB whereby it rejected the petitioner's application under the proviso to Section 35F of the Central Excises and Salt Act, 1944 praying that the condition of pre-deposit of the dues be paid in respect of the said appeal preferred by the petitioner.
2. I have heard Shri A.P. Mathur, Learned Counsel for the petitioner and Shri Shishir Kumar, learned Standing Counsel for Union of India.
3. By an order dated 20-2-1995, the Collector, Central Excise, Meerut has levied a sum of Rs. 23,34,240/- as excise duty and has also imposed penalty of Rs. 8,00,000/- on the petitioner. In addition the Collector has ordered the confiscation of land, building, plant, machinery etc. of the petitioner with option to the petitioner. to get the same released on payment of Rs. 15,00,000/-.
4. The petitioner has preferred an appeal against the aforesaid order to the Tribunal and moved an application for waiver of the condition under Section 35F which requires the person desirous of appealing against such decision or order to deposit with the adjudicating authority the duty demanded or the penalty levied. By the impugned order the learned Tribunal has held that the petitioner has no prima facie case in its favour. It has also held that no case of financial hardship was made out.
5. Having heard the Learned Counsel for either side I am not inclined to interfere as regards the Tribunal's finding on the question of prima facie case.
However, as regards the question of Financial hardship I feel that the Tribunal has not determined the point properly. It has observed as under :-
"Considering the assets of the appellants Co. and the turnover, we also do not consider that any Financial hardship is involved. At this stage, appellants are directed to deposit the entire amount of duty and Rs. 2 lacs towards penalty within eight weeks of the receipt of this order and report compliance to the Registry."
6. The Tribunal's order merely mentions that the sales of the unit exceed Rs. 3 crores. As the copy of the application for waiver annexed with the affidavit shows that the petitioner had annexed therewith its Profit and Loss Account and Balance Sheet for the years ending 31-3-1993, and 31-3-1994. The Tribunal was dealing with the case in June, 1995 and the petitioner should have been required to show its financial position at that time for that purpose. The accounts as they stood on 31-3-1995, would have been relevant. The petitioner's building, plant and machinery had been confiscated under the order appealed against and according to the petitioner he could not manage Rs. 15,00,000/- for the release of those assets which were the means for carrying on the business. The Tribunal has not mentioned what are the assets of the petitioner to which it is making a reference in the impugned order. I find that the application moved by the petitioner under the proviso to Section 35F was also poorly drafted in so far as this aspect of the matter was concerned. In the circumstance it would be appropriate if the petitioner moves a fresh application for waiver on the ground of Financial hardship and the Tribunal should dispose of the same without being influenced by the order already passed.
7. With the above observations, the present writ petition stands disposed of. The petitioner may move a fresh application for waiver before the Tribunal which shall be disposed of according to law.