Judgment:
ORDER
Venkataswami, J.
1. In all these three writ appeals, the appellant is common. In view of the limited scope of the writ appeals, by consent, they are taken up for final disposal.
2. These three writ appeals are filed against separate orders in W.P. Nos. 156 of 1992, [Order dated 8.1.1992 in W.P. No. 156 of 1992 is reported as Jayamohana v. Collector of Central Excise, Madurai-2 in [1993] 41 ECC 207 (Mad)] 14120 of 1991 and 12799 of 1992, respectively dated 8.1.1992, 8.10.1991 and 25.8.1992.
3. The facts leading to the filing of these writ appeals are the following:--
The appellant was having central excise licence L-4 No. 9/M/81 issued by the Superintendent of Central Excise, for manufacture of matches. It is stated that the appellant was running the unit of manufacturing matches as a cottage industry without the aid of power. It appears, on account of losses incurred in the manufacture of matches, the unit was closed on 23.7.1985 and the same was duly informed to the Excise Department. While so, on 19.12.1985, a group of Preventive Officers seem to have visited the factory of S.K. Devadoss (husband of the appellant), separately run by him under a different licence, and, as a result of such visit, the appellant was called upon to show cause why penalty should not be levied and confiscation should not be ordered. Ultimately, the Collector of Central Excise, Madurai passed an order confirming the demand made in the show cause notice by an order dated 28.4.1987. Aggrieved by that Order of the Collector of Central Excise, the appellant preferred an appeal to the Tribunal which was numbered as E/14/88. The Tribunal, on 9.3.1988 passed a conditional order directing the appellant to pay a sum of Rs. 10,000/- on or before 29.4.1988, to enable it to entertain and proceed with the appeal. The appeal was dismissed by the Tribunal on 23.6.1989 inasmuch as the counsel for the appellant was not a position to inform the Tribunal whether the condition already imposed was complied with or not by the Appellant. While dismissing the appeal, the Tribunal observed that if the appellant has already made or if the appellant makes the payment within a reasonable time, the appellant may file an application for revival of the appeal for disposal on merits. The appellant seems to have paid the entire sum of Rs. 10,000/- in installments, and, after paying the full amount of Rs. 10,000/- after a long delay, moved the Tribunal for restoration of the appeal. That applications was dismissed by the Tribunal by order dated 10.7.1991 on the ground that the delay was inordinate, and it was also observed by the Tribunal that such inordinate delay cannot be countenanced in the facts and circumstances of the case. Thereafter, the appellant seems to have first moved this Court by filing W.P. 14120 of 1991 challenging the order of the Tribunal dated 10.7.1991. That writ petition was dismissed by the learned Judge (Bakthavatsalam, J.) holding that the Tribunal was right in dismissing the appeal and it cannot be said that the Tribunal has exercised the discretion in an arbitrary manner. The learned Judge inter alia observed that the appellant (petitioner before him) has not challenged the correctness of the earlier order of the Tribunal directing to pre-deposit the amount and, therefore, there was no substance in the writ petition. To get over that, the appellant filed W.P.12799 of 1992. That writ petition also was dismissed by another learned Judge (Srinivasan, J.) holding that the condition imposed by the Tribunal was in accordance with the provisions of the Act and, therefore, there was noting to interfere. Meanwhile the appellant also filed W.P.156 of 1992 challenging the original Order of the Collector of Central Excise dated 28.4.1987. W.P.156 of 1992 was also dismissed by the learned Judge (Bakthavatsalam, J.) holding inter alia that the appellant having filed the appeal and having failed to comply with the conditional order pending appeal, cannot invoke the jurisdiction under Article 226 after a delay of four years, [the decision is reported in [1993] 41 ECC 207 (Mad)]. It is under these circumstances, the appellant has filed the above three appeals as mentioned above.
4. Mr. C. Natarajan, learned Counsel appearing for the appellant, submitted that the appellant was a small cottage industry owner and that too was closed in the year 1985 which was the cause for the disability to pay the sum of Rs. 10,000/- within the time stipulated by the Tribunal. The appellant having complied with the condition, though belatedly, should have been given an opportunity to have the disposal of her appeal on merits, in the peculiar facts and circumstances of the case. The fact that the appellant paid the sum of Rs. 10,000/- in four installments will show the genuine difficulty experienced by her in raising the funds. Above all, he submitted that the existing Exemption Notification 22 of 1982 would come to the rescue of the appellant if the appeal is to be disposed of on merits and the appellant will be relieved of the demand made under the impugned Order passed by the Collector of Central Excise dated 28.4.1987. He also placed reliance on the observation of the Tribunal on an earlier occasion that the appellant can move the Tribunal if the conditional order is complied with within a reasonable time. No doubt, the learned Counsel admits that there was delay in complying with the conditional order, but would state that it was beyond the control of the appellant.
5. Learned Counsel appearing for the Revenue, however, submitted that the orders dismissing the writ petitions are quite in accordance with the provisions of the Central Excises and Salt Act, and that those orders do not call for any interference in these writ appeals.
6. We have considered the rival submissions.
7. We find that the appellant, a cottage industry owner, had made genuine attempts to comply with the conditional order of the Tribunal, and in view of the fact that the manufacturing unit of the appellant had been closed as early as 1985, the delay in complying with the conditional order should be viewed leniently, rather than rigidly. In that view of the matter, we feel that the appellant must be given an opportunity to place before the Tribunal her case and have a decision on merits.
8. Accordingly, we set aside the order of the Tribunal dated 23.6.1989, dismissing the appeal for non-compliance of the conditional order, and all other consequential orders, and direct the Tribunal to restore on its file the appeal and dispose of the same on merits. Inasmuch as we have restored the appeal for disposal on merits by the Tribunal, no orders are necessary in Writ Appeal No. 781 of 1992 preferred against the Order passed in W.P.No. 156 of 1992 which was filed questioning the Order dated 28.4.1987 passed by the Collector of Central Excise. Accordingly, Writ Appeal No. 781 of 1992 is dismissed. Writ Appeal Nos. 1104 and 1105 of 1992 are allowed. No costs in all the three writ appeals.