ORDER V.N. Khare, J.
1. By means of this writ petition, petitioner seeks a writ of certiorari quashing the order dated 8-11-1993 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi and for a writ of mandamus directing the respondents not to press for the deposit of Rs. 1,19,175.32 and further to hear the appeal on merits without insisting on pre-deposit of the adjudged amount of duty and not to recover the same.
2. We have heard the counsel for the petitioner and Sri Sidharth Singh who has accepted notice on behalf of the opposite party. As agreed between the parties, the writ petition is disposed of finally otherwise it will unnecessarily delay the matter.
3. The brief facts given rise to this writ petition are that aggrieved by an order of the Collector, Central Excise, petitioner filed an appeal alongwith a stay-cum-waiver application before the opposite party, Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi. The stay-cum-waiver application came up for hearing before the tribunal and the tribunal by its order.dated 8-11-1993 directed the petitioner to deposit the entire amount of duty adjudged and also for deposit of penalty. Aggrieved by the order of tribunal, rejecting the waiver application, petitioner has approached this Court under Article 226 of the Constitution of India.
4. The counsel for the petitioner has primarily urged three points, namely, the petitioner was running into loss and he has no financial capacity to deposit the amount in question and in view of this petitioner has made out for the waiver of the amount and without saying a word, in the order, the waiver application has been rejected by the Tribunal.
5. According to the petitioner, materials before the Tribunal were there which go to show that prima facie case, set up by the petitioner was that the order of the Collector, imposing the amount of duty and penalty was erroneous on the face of it and the demands were time-barred, but not a word has been said on each of the above three counts, although these points were taken before the tribunal and the rejection of the waiver-cum-stay application was arbitrary and in a mechanical manner.
6. The counsel for the opposite party has tried to justify the order and has urged that since there is no mention in the order of the tribunal of above three points as such no inference can be drawn that all the three points, referred to above, were urged before the tribunal. On perusal of the stay application, filed before the tribunal, it appears that these three points were taken before the tribunal and alongwith the waiver-cum-stay application balance sheet of the company was also annexed.
7. Since at this stage we are not determining the controversy, one way or the other, but to us it appears that the tribunal may consider all the three points (referred to above), if approached by the petitioner alongwith a certified copy of the order passed by this Court within 2 weeks from the date of issuance of a certified copy of this order and the tribunal will consider these three points and will pass a speaking order in the light of the submission made on these three points at the instance of the petitioner and will pass appropriate order, after affording opportunity to the petitioner, within a period of 4 weeks from the date of filing of the representation alongwith a certified copy of this order. In view of the direction issued by us, directing the tribunal to re-consider the matter on the three counts, referred to above, it is not necessary to quash the order of the tribunal as the equity between the parties will be adjusted if the decision is given by the tribunal on three grounds mentioned above.
8. With the aforesaid direction the writ petition is disposed of finally. Let a certified copy of this order be issued to the counsel on payment of usual charges within three days.