Reasoned pre-deposit orders and hardship assessment are required; non-speaking waiver orders can be set aside in writ jurisdiction.

A writ petition challenging a Tribunal's pre-deposit order was held maintainable where the statutory appeal remedy was uncertain and the order was alleged to be without jurisdiction, perverse, and contrary to natural justice. The Tribunal's partial pre-deposit direction under Section 35F of the Central Excise Act was set aside because it gave no reasons and did not consider the prima facie merits of the appeal or undue hardship. The matter was remitted for fresh consideration of waiver of pre-deposit in accordance with law after examining the relevant factors, including the appellant's financial capacity.

---

---

Issues: (i) Whether a writ petition under Article 226 of the Constitution of India was maintainable against the Tribunal's order on pre-deposit in view of the statutory appeal provision. (ii) Whether the Tribunal's order directing partial pre-deposit under Section 35F of the Central Excise Act, 1944 was sustainable when it disclosed no reasons and did not consider the prima facie case and financial hardship.

Issue (i): Whether a writ petition under Article 226 of the Constitution of India was maintainable against the Tribunal's order on pre-deposit in view of the statutory appeal provision.

Analysis: The availability of an appeal under Section 35G(1) of the Central Excise Act, 1944 depended upon the High Court being satisfied that the case involved a substantial question of law. An order on waiver or pre-deposit is incidental to the hearing of the appeal, turns largely on facts, and does not ordinarily raise a substantial question of law. Where the alternative remedy was uncertain and the impugned order was alleged to be without jurisdiction, violative of natural justice, and perverse, the writ court could exercise jurisdiction.

Conclusion: The writ petition was maintainable and the objection based on alternative remedy was rejected.

Issue (ii): Whether the Tribunal's order directing partial pre-deposit under Section 35F of the Central Excise Act, 1944 was sustainable when it disclosed no reasons and did not consider the prima facie case and financial hardship.

Analysis: Dispensation of pre-deposit requires the Tribunal to apply its mind to the prima facie merits of the appeal and the question of undue hardship. A pre-deposit order must be reasoned, even if briefly, and must show the process of reasoning leading to the conclusion. The impugned order recorded a conclusion against the petitioner without dealing with the submissions, without explaining why only part of the disputed duty was directed to be deposited, and without recording any finding on hardship or financial incapacity.

Conclusion: The Tribunal's order was unsustainable and was set aside.

Final Conclusion: The matter was sent back to the Tribunal for fresh consideration of waiver of pre-deposit in accordance with law after examining the relevant factors, including the prima facie case and financial capacity.

Ratio Decidendi: An order on waiver or partial waiver of pre-deposit under Section 35F of the Central Excise Act, 1944 must be supported by reasons reflecting consideration of prima facie merit and undue hardship; a non-speaking or arbitrary order is liable to be interfered with in writ jurisdiction despite the existence of an uncertain statutory appeal remedy.

---