Susanta Chatterji, J. - (1.) Having heard the learned Counsel for the petitioner and also the contesting respondents-authorities it appears that the petitioner has challenged the impugned order dated 29-12-1989 passed by the CEGAT as communicated by memo dated 8-1-1990 copy of which is an Annexure to the writ-petition at page 167. The members of the CEGAT by order dt. 29-12-1989 have disposed of an application for stay of order of the Collector of Central Excise, Calcutta dated 30-11-1988 calling upon the petitioner M/s. Radiant Engineering Industries Pvt. Ltd. to pay a sum of Rs. 3,98,280.65 as duty and imposing a penalty of Rs. 2,00,000/-. The said duty has been demanded in respect of the goods which have been held by the petitioner as having been cleared without payment of duty passing them off, inter alia, as free supply items for replacement against old supplies. The Collector, however, has given the benefits to the petitioner for dropping the demand for Rs. 1,29,541.64. The Appellate Tribunal has considered the entire matter and by a reasoned order, directed the petitioner to deposit the entire duty as pre-deposit. With regard to the penalty the petitioner had been given the benefits to deposit a sum of Rs. 50,000/- out of Rs. 2 lakhs and for balance amount the petitioner was asked to furnish a personal bond.
(2.) Being aggrieved the petitioner has come to this Court. At the out-set, the concept must be very clear that this writ court is not sitting in Appeal upon the order of the statutory authority. This writ-court has to examine the decision making process as very recently observed in the decision of the Supreme Court. Two yardsticks are there for the purpose of disposal of the stay petition by the CEGAT while the Tribunal is itself in seisin of the matter to decide the Appeal on merit The writ-court is not certainly going to consider the merit of the appeal in any manner whatsoever. The writ-court has to consider as to whether the CEGAT has properly exercised its discretion in disposing of the application for stay. There will be a two-fold consideration for the purpose of exercising the discretion for the purpose of disposal of the said application. The said conditions are 1) a prima facie case so far as the appeal is concerned and 2) the financial hardship of the petitioner so that the petitioner may be exonerated from depositing the entire pre-deposit. Unless the statutory authority fails to exercise the discretion and/or passes an order beyond the jurisdiction and/or in excess of the jurisdiction and/or the order suffers from any such unfirmity and/or perversity which may result manifest injustice to the petitioner, the writ-court would be slow to interfere. In the instant case, this Court finds with all anxieties that the CEGAT has considered both the aspects of the matter, viz. with regard to the prima facie case of the petitioner as well as the other consideration of financial hardship and in fact, the petitioner has been permitted to deposit Rs. 50,000/- in cash out of Rs. 2 lakhs of penalty. The Court has been taken through various materials on record and this writ-court itself has considered the financial hardship of the petitioner by looking at the balance-sheet and other materials on record and this Court is of the view that for the ends of justice the impugned order is modified to this extent that instead of depositing the sum of Rs. 50,000/- towards penalty the petitioner may be permitted to furnish the personal bond relating to the entire penalty amount. There is nothing to give any indulgence to the petitioner to avoid payment of Rs. 3,98,280.65 as pre-deposit as the said amount is being deposited as a condition of the appeal and as without prejudice. If the petitioner succeeds in appeal the petitioner will get all the benefits as available in law.
(3.) For the aforesaid reasons, the writ-petition is disposed of by modifying and/or varying the impugned order in the manner as indicated above.;