Judgment:
1. This is an application seeking modification of the order of the Tribunal dated 20-8-1993 directing the appellant to pre-deposit the amount specified therein in terms of Section 35F of the Central Excises & Salt Act, 1944, the 'Act' for short.
2. Shri Joggayya Sharma, the learned Senior counsel for the petitioner, submitted that under the Sick Industrial Companies (Special Provision) Act, 1985 (Central Act 1 of 1986) in terms of Section 22 if an industrial unit has been declared sick, such unit should not be called upon to make any pre-deposit to exercise the right of appeal. It was submitted that in the present case the period of levy relates to September, 1989 to April, 1990 in respect of which the show cause notice was issued on 10-10-1990. The application was made by the industrial unit on 26-3-1991 in terms of Central Act 1 of 1986 cited supra and on 17th August, 1991 a declaration was made by the Board declaring the unit as 'sick' and the impugned order of adjudication has been passed on 7-12-1992. The learned counsel submitted that in terms of Section 22 of the Central Act 1 of 1986 all legal proceedings, contracts, etc. would stand suspended particularly execution of any order against any properties of the industrial company declared sick and in view of the non obstante clause which would have overriding legal effect of all other proceedings of law including the proceedings relating to Section 35 of the Act. The learned counsel also in this context placed reliance on the ruling of the West Regional Bench in the case of Gujarat Narmada Auto Limited v. C.C.E., Vadodara, reported in 1992 (19) E.T.R. 321. The learned counsel further submitted that even if the Tribunal is not inclined to hold that Section 22 of the Central Act 1 of 1986 would be a statutory bar as against the application and operation of Section 35F of the Act, at any rate the sick nature of the industrial unit may be taken into consideration in considering the petitioner's plea of undue hardship for modification of the order of the Tribunal. Finally, the learned counsel submitted that in any event the petitioner would pray for further extension of time for one year in the peculiar facts and circumstances of the case.
3. Shri Gregory, the learned SDR, submitted that in view of shortfall in the Revenue collection time may not be extended beyond 28th February, 1994.
4. We have considered the submissions made before us. In our view Section 22 of Central Act 1 of 1986 does not place, any statutory embargo in regard to operation of Section 35F of the Central Excises & Salt Act, 1944 in regard to pre-deposit. Section 22 is only to safeguard against any distress or attachment and sale of the properties of the sick unit in execution of any order. Attachment and sale in execution of an order is totally different from a person exercising the right of appeal, which statutory right of appeal is circumscribed in the very grant of right itself by a condition in regard to pre-deposit, unless otherwise waived by a statutory Tribunal on grounds of undue hardship and settled principles of law coming within the mischief of Section 35F of the Act. In our view the ruling of the West Regional Bench in the Gujarat Narmada Auto Ltd. case cited supra, which is an order in interlocutory application, has not taken this aspect into consideration. We further note in the ruling of the Bombay Bench cited supra that even the petitioners/appellant did not address any such plea with refernece to any overriding effect of Section 22 of the Central Act 1 of 1986. The only plea before the West Regional Bench was the unit having become sick the unit would suffer undue hardship if called upon to pre-deposit. We further note that the finding in the said order of the Tribunal in Para 4 does not flow from the wording of Section 22 of Central Act 1 of 1986. We further note that even in the impugned order the Tribunal has taken note of the sick nature of the unit and also the financial position and further found that the company is a working unit and "have recovered over Rs. 2 crores which were outstanding". We also take note of the fact that the plea made on behalf of the petitioner offering to pre-deposit Rs. 5 lakhs has also been taken note of and referred to in Para 4 of the impugned order dated 20-8-1993. Therefore, we are not able to accept the plea of the learned counsel for modification of the order. However, in the facts and circumstances we grant further extension of time by 6 months to the petitioner to make the pre-deposit in terms of the Tribunal's order and report compliance by 29th July, 1994. The matter will be called on 29th July, 1994 for reporting compliance.