Judgment:
D.S. Sinha, J.
1. Duty of excise amounting to Rs. 5,94,731 /- together with penalty of Rs. 5,000/- has been determined to be payable by the petitioner vide order dated 20th August, 1991 passed by the Collector, Central Excise, Kanpur, the respondent No. 3, under Section 11A of the Central Excises and Salt Act, 1944, hereinafter called the Act, read with Rule 173Q of the Central Excise Rules, 1944.
2. Feeling aggrieved by the order of the respondent No. 3 the petitioner has preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, the respondent No. 2, under Section 35B of the Act. The said appeal is pending consideration.
3. The petitioner also applied under Section 35F of the Act for dispensing with the requirement of depositing the duty demanded from it.
4. The respondent No. 2, after considering the facts and circumstances of the case and also taking into account the question of undue hardship, as envisaged by the proviso to Section 35F, came to the conclusion that if the applicant was desired to deposit the entire duty and penalty it would amount to undue hardship. It, therefore, dispensed with the requirement of predeposit on the condition that the petitioner deposited Rupees two lacs within sixteen weeks from the date of the order, namely, the 26th March, 1992.
5. The petitioner did not feel satisfied with the partial dispensation of the condition of predeposit of the duty. It therefore, moved a review petition, basically, on the ground that the question of its financial position was not correctly appreciated and prayed for dispensation of the total demand. In the alternative, it was also prayed that further time of atleast two months may be granted for complying the order dated 26th March, 1992 passed by the respondent No. 2.
6. The Tribunal considered the question of financial difficulties again and concluded that its earlier decision in this regard was perfect and called for no modification. However, taking compassionate view of the matter it passed an order dated 13th July, 1992 extending the time for complying the order dated 26th March, 1992 upto 30th September, 1992. The petitioner is not satisfied with the said order and has approached this Court for quashing of the order and for direction to the Tribunal to hear the appeal without insisting upon the compliance of its order with regard to the deposit of the duty of excise.
7. Shri A.P. Mathur, learned Counsel for the petitioner, vehemently contends that the impugned order is vitiated inasmuch as the question of limitation against the demand has not been considered by the Tribunal. He further asserts that the order is unjust.
8. Short answer to the argument of Shri Mathur with regard to the plea of limitation is that the review petition was predominantly founded on the ground that the financial position of the petitioner was not correctly appreciated. The question of limitation against the recovery of the duty of excise was never specifically pleaded in the review petition. Also there was no plea set up that the question of limitation was not considered by the Tribunal while passing the order sought to be reviewed. Only a cursory and faint suggestion that 'the demands were time barred' was made in paragraph 5 of the petition. Moreover, the impugned order does not indicate that the plea of limitation was pressed during the course of arguments before the Tribunal.
9. A pleading which is cursory and faint, and lacks exactitude, precision and specificity, cannot oblige any adjudicator, much less an authority under the Act, to consider and render decision on it. The alleged failure on the part of the Tribunal to consider the cursory and faint plea of limitation does not amount to any error, much less an error apparent on the face of record, warranting interference by this Court under Article 226 of Constitution of India.
10. However, we have considered the question as to whether the demand made by the Revenue was, prima facie, barred by time. We are not persuaded to conclude that the demand is, prima facie, barred by limitation. Under Section 11A of the Act when any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the demand in this regard may be made within six months from the relevant date. Proviso to Section 11A, however, provides that in case where any duty of service has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts, or contravention of any of the provisions of the Act or of the Rules made thereunder with intent to evade payment of duty, such duty can be demanded within five years of the relevant date. The order of the Collector, the respondent No. 3, dated 20th August, 1991 is before us and, upon a bare perusal thereof, we find that after due consideration of the entire relevant material on record a finding of fact has been recorded by her to the effect that the petitioner manufactured and cleared the goods without obtaining Central Excise Licence and without complying the provisions of law with an intent to evade the payment of Central Excise duty. Further finding is that the party did not disclose the manufacture of excisable goods falling under sub-heading 2107.91 and suppressed the material evidence in respect thereof. On these finding the proviso to Section 11A of the Act envisaging the period of limitation to be five years from the relevant date is surely attracted.
11. Shri Mathur made a feeble attempt to persuade us to hold that the aforesaid findings are perverse. We refrain from examining this submission of the learned Counsel as any decision by us on this aspect may preclude the petitioner from agitating the matter before the Tribunal. We clarify that the petitioner shall be free to agitate the plea of limitation against the demand of duty of excise and the Tribunal shall be at liberty to adjudicate upon the same on merits and in accordance with law.
12. Now we come to the second limb of the argument of Shri Mathur that the impugned order is unjust. The learned Counsel could not demonstrate as to how the order is unjust. We have given our anxious consideration to the entire facts and circumstances of the case. In our opinion, the impugned order is absolutely just and does complete justice to the parties.
13. There is yet another aspect of the matter. The impugned order is interlocutory in nature and this Court is loath in meddling with such orders in exercise of its special and extraordinary constitutional jurisdiction.
14. For the foregoing reasons, this petition must fail and is, therefore, dismissed.