Writ jurisdiction and pre-deposit waiver: conditional appeal cannot defeat relief where hardship and prima facie merits were ignored.

Availability of an alternative appellate remedy does not by itself bar writ jurisdiction under Article 226 where the supposed appeal is conditional and uncertain. In the context of pre-deposit under Section 35F of the Central Excise Act, the authority must consider undue hardship, financial hardship, prima facie merits, and record reasons before refusing waiver. A refusal based mainly on absence of documents or balance-sheet assets, without addressing pleaded losses and liabilities, is legally unsustainable. The impugned order was quashed and the waiver request was required to be reconsidered afresh on relevant legal and factual factors.

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Issues: (i) whether the writ petition was barred by the availability of an alternative appellate remedy under the Central Excise Act, 1944; (ii) whether the order directing deposit of the entire disputed duty was sustainable when the Tribunal had not considered undue hardship, financial hardship, and the prima facie case for waiver under Section 35F of the Central Excise Act, 1944.

Issue (i): whether the writ petition was barred by the availability of an alternative appellate remedy under the Central Excise Act, 1944.

Analysis: The availability of an alternative remedy does not by itself bar exercise of writ jurisdiction under Article 226 of the Constitution of India. Where the alleged appellate remedy depends upon the High Court being satisfied that the case involves a substantial question of law, the remedy is not automatic or certain. An order refusing waiver of pre-deposit on a prima facie factual assessment does not necessarily raise such a question, and the existence of an uncertain appellate route is not an adequate ground to decline writ relief.

Conclusion: The writ petition was maintainable and was not liable to be rejected merely because an alternative remedy was available.

Issue (ii): whether the order directing deposit of the entire disputed duty was sustainable when the Tribunal had not considered undue hardship, financial hardship, and the prima facie case for waiver under Section 35F of the Central Excise Act, 1944.

Analysis: The discretion to waive pre-deposit under Section 35F is required to be exercised on relevant considerations, including undue hardship, prima facie merits, and the financial position of the appellant. A liberal approach is called for where insistence on pre-deposit may cause serious hardship. The impugned order proceeded substantially on the ground of lack of supporting documents and the appellant's balance-sheet assets, but it did not properly address the pleaded financial hardship, losses, secured liabilities, or the prima facie case, nor did it disclose adequate reasons for refusing waiver.

Conclusion: The order directing pre-deposit of the full disputed duty was unsustainable and was liable to be set aside.

Final Conclusion: The impugned order was quashed and the Tribunal was directed to reconsider the prayer for waiver of pre-deposit afresh by taking into account the relevant factual and legal considerations, including financial hardship and prima facie merits.

Ratio Decidendi: Where waiver of pre-deposit is sought under Section 35F, the appellate authority must exercise discretion on relevant factors and record reasons, and a writ court need not decline relief merely because a speculative or conditional statutory appeal may be available.

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