ORDER
1. Petitioner, a company incorporated under Companies Act, 1956, is before this Court mainly seeking a direction to the second respondent herein to consider and dispose of the appeal in No. 622/96(B) or in the alternative to dispose of the stay petition filed along with the appeal. The other relief sought in the writ petition is to quash the order of detention passed by third respondent dated 4-3-1997.
2. Briefly the back ground facts are, the Asstt. Commissioner of Central Excise, Bangalore, had passed an order of adjudication for the period 1-4-1994 to 31-3-1995 and had imposed excise duty under Central Excises and Salt Act, 1944 (the Act for short) in a sum of Rs. 38,29,868/- and a penalty of Rs. 5,000/- by his order dated 14-5-1996. Disturbed by this order, petitioner has preferred an appeal before Commissioner (Appeals) Bangalore. Along with the appeal, petitioner has also filed an application for waiver of pre-deposit for entertaining the appeal. The appeal and the application for stay is filed on 13-8-1996. During the pendency of the appeal and the application for stay, third respondent has passed an order of detention dated 43-1997, directing the detention of excisable goods. Aggrieved mainly by this action of the third respondent authority, petitioner is before this Court for the reliefs as indicated by me earlier.
3. Sri Chander Kumar, learned Senior Counsel appearing for the petitioner strongly contends that the order of detention passed by respondent No. 3 is premature and unsustainable in law since the stay petition, filed by the petitioner along with the appeal is pending disposal before the appellate authority. In support of his contention, the learned Senior Counsel strongly relies upon the decision of this Court in the case of M/s. Charak Pharmaceuticals Ltd. v. Union Of India (W.A. 578/1996, decided on 14-2-1996) and also another decision of this Court in the case of M/s. Wipro Ltd. v. Asstt. Collector of Central Excise, Bangalore (W.P. 43/1996, decided on 5-1-1996).
4. In M/s. Charak Pharmaceuticals Ltd.'s case, this Court, on the facts and circumstances pleaded in that case was pleased to observe :
'We have heard the learned Counsel for the appellant and the learned Counsel for respondents and in our judgment, it is not permissible for the Asst. Commissioner to commence the recovery proceedings even while the stay application filed by the appellant is pending before respondent No. 2 and is not disposed of. The appellate authority cannot decline to consider the stay application and thereby permitting respondent No. 3 to proceed with the enforcement of the order of adjudication.'
5. The emphasis is more on the appellate authority declining to consider the stay application and thereby permitting respondents to proceed with the enforcement of the order of adjudication. In the instant case, petitioner has not alleged that the appellate authority has declined to consider the petitioner's application for grant of stay of disputed huge amounts of excise duty. It is also not alleged that because of his inaction he has permitted the adjudicating authority to proceed with the enforcement of the order of view, if the facts are same or similar, the ratio of the prior decisions may be applicable in a subsequent case. However, if the facts of the case are dissimilar or distinct, the principles of law enunciated in the preceding case cannot be made applicable in a later case. It is well established principle of law that the principle of law in a decided case by a Division Bench of a High Court if the tacts are same or similar in an earlier case, would bind on the subsequent bench of the same High Court and judicial decorum and certainty of law require a single judge to follow the decision of bench of the same High Court. In that view of the matter, the observations made by the bench of this Court in M/s. Charak Pharmaceuticals would not come to the aid of petitioner in this petition.
6. In Wipro Ltd.'s case, this Court has not declared any principle which requires to be followed. This Court has just followed the view expressed by Allahabad High Court in the case of Vespa Car Co. Ltd. - 1992 (61) E.L.T. 16 (All.) case and has quashed the order of detention made by the adjudicating authority and has further directed the appellate authority to dispose of the stay application filed by the petitioner therein within a particular point of time.
7. Before I advert to merits or demerits of the contention raised by learned Counsel for petitioner, I must notice that an offer was made to the learned Counsel to make some deposit of disputed duty to consider petitioner's request for interim relief keeping in view the observations made by Apex Court in the case of Dunlop India Ltd.'s case : 1985ECR4(SC) and in the case of Siliguri Municipality v. Amalender Das : [1984]146ITR624(SC) ) and also the orders made by me in almost all similar cases. The learned Counsel flatly refuses to deposit any disputed duty, and vehemently contends that this Court should grant unconditional orders, which I feel may not be possible and correct in the case of indirect taxation.
8. The Supreme Court in the case of Asstt. Collector of Central Excise v. Dunlop India Ltd. : 1985ECR4(SC) , was pleased to observe that various interim orders passed by the Courts have seriously Depolarized public revenue and budgets of Government forcing the State to explore further sources for raising revenues, sources which they would well leave alone in public interest. Further, the Court with lot of concern was pleased to observe that the practice of granting relief which practically gives the principal relief for no better reason than that a prima facie case had been made was Deprecated by the Apex Court. It was also observed by the Court that where denial of interim relief may lead to public mischief, great irreparable private injury or shake a citizen's faith in the impartially of public administration, a Court may well be justified in granting interim relief against public authority.
Insofar as stay of recovery of tax is concerned, it was stated in Siliguri Municipality's case that such stay should be granted in exceptional circumstances, while passing Such an interim order, the Court has to strike a delicate balance after considering the pros and cons of the matter, lest larger public interest is jeopardised and institutional embarrassment is eschewed.
9. In the Calcutta Hardwares case, : [1986]1SCR364 , the Supreme Court was pleased to issue a note of caution while granting ex parte and unconditional orders of stay. In the said decision, the Court was pleased to observe that though the Judges must even be vigilant to protect the citizens against arbitrary executive action, nonetheless, the Judges have to play a constructive role, and, in larger public interest, there has to be an element of self-ordained restraint.
10. I am referring these decisions only for the reason that in the instant case, petitioner by an indirect method wants an unconditional order of stay of recovery of the disputed duty solely on the ground that its appeal and application for grant of interim prayer is pending consideration before the appellate authority.
11. In the instant case, an order of adjudication is framed by the Asstt. Commissioner of Central Excise, Bangalore. This order was made by the respondent-authority after hearing the assessee concerned. By his reasoned order, he has imposed the duty payable by the petitioner under the act. Against the said order, the statute provides for an appeal remedy. The appellate authority is a quasi-judicial authority. From the substantive power given to the first appellate authority to entertain and hear appeals, flows the ancillary or incidental power to grant stay of collection of duty pending disposals of the appeals filed by it. This ancillary power is not merely procedural one and is not separable from substantive power of hearing the appeals.
12. Under Sec. 35F of the Act, the assessee has a right to prefer an appeal against the order of adjudication. The provision also clearly states that the assessee desirous of appealing against such a decision, pending appeal shall deposit with the adjudicating authority the duty demanded or the penalty levied. However, proviso provided to the Section gives discretion to the appellate authority to waive pre-deposit if he is of the opinion that the deposit of duty demanded would cause undue hardship to the appellant before him. The power to determine whether pre-deposit has to be waived or what amount of duty, if at all, is to be paid by the assessee is in the discretion of the appellate authority. As such, when an application for waiver of pre-deposit is made along with the appeals, the appellate authority is expected to consider the same and pass appropriate orders giving out reasons after proper application of mind. This discretionary order must be made by him and by him alone. It is only when the appellate authority does not act judiciously and reasonably and when there is inordinate and inexcusable delay inspite of repeated requests and representations and does not exercise his discretion in a fair and a reasonable manner, this Court exercising its equity and discretionary jurisdiction can interfere with the orders made by the appellate authority or if there is unreasonable and unexplainable delay in discharging its statutory duties and obligations and not otherwise and not in every other case, direct the appellate authority to dispose of either the appeal or application filed. Now a days, tendency of the assessees seem to be, throw an appeal before the appellate authority and without even giving him sufficient time and without even waiting for a reasonable period to lapse, to decide the application, assessees rush to this Court on one pretext or the other. Sometimes they say that when its appeal and application are pending consideration before the appellate authority, the adjudicating authority should not resort to recovery proceedings to recover the assessed duty payable. Petitions under this particular enactment filed before this Court are invariably of the similar nature. The statistics would clearly show that out of 10 cases filed every day, 9 cases are of this nature. No doubt, the appellate authorities are obliged to consider and dispose of the applications filed along with appeals as expeditiously as possible but this Court cannot expect them to do miracles. Some reasonable time should be allowed to the appellate authority to consider and decide the applications filed for waiver of pre-deposit since the appellate authorities are expected to give out reasons for reaching a particular conclusion. In such cases, normally this Court grants discretionary, conditional orders restraining the respondents from recovering the disputed duty by resorting to coercive methods. In the present case, the learned Counsel for the petitioner goes to the extent of saying that there must be unconditional order in favour of the petitioner till the appellate authority considers and decides the application for waiver of pre-deposit. In my view, the demand so made by the learned Counsel is not only highly unreasonable but oppose to the observations made by Apex Court in Dunlop's case and also in Empire Industries' case. In my view, an assessee is not entitled to an order of stay of collection of disputed duty as a matter of right. Filing of an appeal against the order of adjudication by itself is not a ground for granting stay of collection of duty. Discretion is given to the appellate authority to give such directions as he thinks fit with regard to the payment of duty. It is only when he refuses to exercise his discretion or when there is inordinate and inexcusable delay in exercising its jurisdiction, this Court may come to the aid of the assessees and not at any rate not in every case. There seems to be a feeling that in every case the appellate authority should take up the application out of turn and decide the same just because the petitioner feels that it is not in a position to pay the disputed duty. This Court cannot expect them to decide the application taking them out of turn. Further in Bangalore, there is only one appellate authority and there are hundreds of appeals and applications filed before him by the assessees aggrieved by orders of adjudication. This Court cannot expect one appellate authority to decide all the applications filed by the assessees concerned within the time the petitioners want their applications to be disposed of and this Court cannot expect the adjudicating authority to keep off his hands from recovering the duty assessed after the expiry of the statutory time granted in the notice till the appellate authority considers and decides the application for waiver of pre-deposit save in exceptional cases.
13. In the instant case, the adjudicating authority had passed an order imposing duty payable under the Act on 14-5-1996 for the period 1-4-1994 to 31-3-1995. The assessee takes nearly two months to prefer an appeal before the appellate authority and when the adjudicating authority passes an order nearly after ten months, detaining the excisable goods under Rule 230 of the Central Excise Rules on the ground that the petitioner failed to pay the duty, the assessee is disturbed and files this petition for quashing the detention order and for a direction to the appellate authority to consider and decide the petitioner's application for waiver of pre-deposit. An assessee who has just one or two cases to agitate can take nearly two months to prefer an appeal expects the appellate authority who has hundreds of appeals and applications before him to decide the same in three months. In my view, there is no fault nor any inaction on the part of the appellate authority. It cannot be said that the appellate authority has not discharged his statutory obligation and duty to necessitate this Court to issue direction to him to perform his statutory duty.
14. Lastly, there is already an order of adjudication made by Asstt. Commissioner of Central Excise, Bangalore, imposing duty payable under the Act. If for any reason, the duty is recovered by the adjudicating authority before the appellate authority could consider and decide the appeal or application for waiver of pre-deposit, the assessee can definitely seek for refund of the duty paid during pendency of the appeal. Just because the amounts of duty is recovered during the pending of the appeal or application for grant of interim prayer, it cannot be said in all cases that it would frustrate the appeal. As long as there is no interim order made by higher forum against the orders of adjudication, the recovery of the amounts of duty by the adjudicating authority by passing an order of adjudication cannot be taken exception to by this Court.
15. In that view of the matter, the relief sought for by the petitioner to quash the order of detention cannot be granted by this Court. In so far as the direction sought for to the second respondent to decide the appeal or the application filed by the petitioner, a direction is issued to the appellate authority to consider and decide the application filed by the petitioner for grant of an interim prayer as expeditiously as possible.
16. Ordered accordingly.