Calcom Vision Ltd. Vs. Commissioner (A), Cus. and C. Ex.

.....ghaziabad dismissing the petitioners application for waiving the condition of pre-deposit -- section 35 of the central excise act, 1944.;modvat credit - denied by the commissioner (appeals) on some procedural deficiencies - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public..........has been preferred by the petitioner before the said commissioner. section 35f requires the appellant to make a pre-deposit of the adjudicated dues without which no appeal can be entertainend. the proviso to section 35f, however, authorises the appellate authority to waive the condition of pre-deposit wholly or partially, if it is of the opinion that undue hardship will be caused to the appellant if it is required to deposit the amount. it is in exercise of that power that the petitioner appealed to the commissioner for waiving the condition of pre-deposit on the ground that it had wrongly denied the moderate (sic) credit and it had a strong prima facie case. the commissioner in the impugned order has noted the facts which show that only some procedural deficiencies have been made the basis of the denial of the moderate (sic) credit. it is true that the financial hardship was not stated before the commissioner but in the writ petition it has been specifically stated that the petitioner has drawn from the banks sums totalling to about rs. 1.5 crores. in my view, looking to the facts and circumstances of the case, it was a fit case in which the partial exemption should have been allowed to the petitioner at the stage of the first appeal.4. i, therefore, allow this writ petition and setting aside the impugned order, it is ordered that in case the petitioner deposits rs. 1.5 lacs with the adjudicating authority by 30th april, 1999, the condition of pre-deposit of the balance shall stand waived.