ORDER M.C. Agarwal, J.
1. Heard the learned counsel for the petitioner and Shri Shishir Kumar for the respondents.
2. In view of the circumstances of this case, it is not considered necessary, nor it is insisted upon by the learned counsel for the respondents, to file a counter-affidavit. The writ petition is, therefore, finally disposed of at the admission stage.
3. This writ petition under Article 226 of the Constitution of India is directed against an order dated 11-7-1994, passed by the Collector (Appeals) under Section 35F of the Central Excises and Salt Act, 1944.
4. The Additional Collector, Central Excise, Meerut, has raised a demand of Rs. 2,92,357.40 p. under Rule 57-I of the Central Excise Rules and has also imposed a penalty of Rs. 1,000/- on the petitioner. The petitioner has filed an appeal before the Collector (Appeals), Customs and Central Excise, Ghaziabad. Under Section 35-F of the Act, the appellant has to deposit with the adjudicating authority the duty demanded or the penalty levied. The proviso to Section 35-F, however, gives power to the appellate authority to dispense with the condition of pre-deposit subject to such conditions as he may deem fit to impose if the appellate authority is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person. Invoking the discretion conferred by the said proviso, the appellant moved an application before the Collector (Appeals) for waiver of the condition of pre-deposit. By the impugned order, the learned Collector has directed the appellant to deposit Rs, 2,00,000/- within 15 days of the order. It is against this direction that the petitioner has come to this Court contending that looking to the financial position of the petitioner, this condition would cause undue hardship to it and fetters the right of appeal itself.
5. In the order under challenge, the Collector has noticed that the Unit is running in losses and has accumulated losses of Rs. 40.17 lacs and that, in these circumstances, if the appellant is called upon to make a pre-deposit of the dues, it is likely to cause a burden upon the appellant. In view of the aforesaid observations the Collector's order requiring the appellant petitioner to deposit about two-third of the demand cannot be justified.
6. The petitioner's right to appeal and the interest of revenue have to be harmonised and the condition of pre-deposit has to be imposed in a manner that it does not create a strong fetter to the right of appeal itself. In my view, therefore, it would have been just if the petitioner was required to pre-deposit a sum of Rs. 50,000/- only.
7. The writ petition is, accordingly, allowed and it is directed that in case the petitioner deposits a sum of Rs. 50,000/- in cash towards the aforesaid dues within 15 days from today, the condition of pre-deposit of the dues under Section 35-F of the Act shall stand dispensed with. The writ petition, accordingly, stands allowed. Parties are directed to bear their own costs.
8. A certified copy of this order may be given to the learned counsel on payment of usual charges within 24 hours.