Amitava Lala, J. - (1.) This writ petition is made challenging the order of the Deputy Commissioner, Central Excise, Durgapur-II Division, dated 6-6-2001. The impugned order is as follows : "5.6 "Further, in regard to imposition of penal provision in this case for taking wrong Modvat credit by the said assessee, I find that the assessee have not suppressed the fact from the department regarding availment of Modvat credit on the strength of endorsed invoices and invoice cum challan issued by M/s. MMTC. Indore and entries to the effect have been made in the statutory books of accounts. The assessee have also produced the documents to their jurisdiction Range Supdt. of Central Excise for verification and defacement. I also find that this has happened during the transitional period when there was a shifting from the old Gate Pass System to newly introduced Invoice System. I, therefore, take a lenient view so far imposition of penalty is concerned in this case and refrain from imposing any penalty. ORDER In view of the foregoing facts and circumstances, I disallow Modvat credit of Rs. 18,38,041.00 (Rupees Eighteen lac thirty eight thousand forty one only) availed by the said assessee in terms of Rule 57-1(1) of C.E.R., 1944 and as the said assessee have already utilized the said Modvat credit. I confirm demand of Central Excise duty to the extent of Rs. 18,38,041.00 in terms of Rule 57-1(1) of C.E.R., 1944 read with Section 11A of C.E.A., 1944 and direct them to pay the same within 30 (thirty) days of receipt of this Order, failing which they will be further required to pay interest @ 24% P.A. in terms of Section 11AA of C.E.A., 1944 till its recovery."
(2.) The company becomes sick industrial company by an order dated 8-8-2001. A demand has been made to pay the arrear amount of Rs. 18,38,041.00 by the Superintendent, Central Excise 'E' Range by an order dated 10-10-2001 with a further intimation that in case of failure within the prescribed time given thereunder a coercive measure will be initiated to realize the outstanding arrear in absence of any stay order from the competent authority. Neither the petitioners have made any application within the time prescribed under the law before the Commissioner of Central Excise nor the jurisdiction of the Tribunal was invoked from the decision or order passed by the Commissioner of Central Excise. Similarly, no prayer has been made for dispensation of any pre-deposit in connection thereto either before the Commissioner of Central Excise or before the Tribunal. Now, at this stage the writ jurisdiction has been invoked for the purpose of dispensation of pre-deposit and for the purpose of Condonation of delay for making an application either before the Commissioner of Central Excise or before the Tribunal.
(3.) The respondents have vehemently opposed this application even to the extent of Condonation of delay or dispensing the order of pre-deposit since it has to be made by the appropriate authority or the Tribunal under the relevant act. As a result whereof there is no occasion for the Court to enter into the merit of the matter even if there is a justifiable cause or not carrying out the order of the Deputy Commissioner, Central Excise, Durgapur-II Division. Therefore, the consideration of the Court is restricted only on the aforesaid grounds. Parties have argued at length. Even at the stage of admission of the writ petition/ the Court has gone through various judgments which have been cited by the respective Counsel appearing for the parties. A nine Judges Bench judgment of the Supreme Court(Mafatlal Industries Ltd. and Ors v. Union of India and Ors.) held that the High Court under Art. 226 of the Constitution of India must exercise its writ jurisdiction in consonance with the legislative intent manifested by the statutory provisions involved. Art. 226 of the Constitution of India is to be exercised to effectuate the regime of law and not to abrogate it. The clear intent of such judgment is not to interfere with the cases which ought to be decided by the forum under a given situation.;