R.K. GUALTI, J.


(1) THE petitioner has prayed a writ of certiorari seeking quashing of the order dated 12th december, 1995 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New delhi, by which the Tribunal rejected the application of the petitioner for waiver in part. The petitioner had applied for dispensing with the pre-deposit of excise duty of Rs. 2,86,036/demand from the petitioner by the Assistant Collector, Central Excise, Division-Ill, Ghaziabad, which was the subject matter of appeal preferred before the Appellate Tribunal against the order passed by the Commissioner (Appeals) Customs and Central Excise, Ghaziabad who had affirmed the order passed by the Assistant Collector Central Excise. The Tribunal directed that the petitioner may deposit a sum of Rs. 1 lac on or before 28th February, 1996 instead of Rs. 2,86,036/- which the petitioner was required to deposit under Section 35f of the Central Excises and Salt Act, 1944.


(2) HEARD learned counsel for the petitioner and Sri Arun Kumar Gupta, learned Standing Counsel for the Union of India.


(3) THE learned counsel for the petitioner contended that the impugned order was passed without taking into account the balance-sheet of the petitioner's company drawn on 31st March, 1995 and further the prima facie case of the petitioner was also not considered in passing the impugned order. It was urged that the financial position of the petitioner was not such that the petitioner could make the deposit of Rs. 1,00,000/- as directed by the Appellate Tribunal.


(4) I have considered the submission carefully, but in my opinion there is no substance in any one of them. From the stay-cum-waiver application a copy of which has been filed as Annexure A 4 to the writ petition, it would be seen that except for a vague statement that it would cause great hardship to the petitioners if they were asked to deposit any amount of the disputed amount of excise duty no material was placed in that application to substantiate that plea. In fact no emphasis was given on the alleged poor financial condition of the petitioner. The balance sheet as on 31st March, 1995 on which much reliance was placed, also does not help the petitioner. In the first instance, the Tribunal had to consider the position as on 12th December, 1. 995 when the impugned order was made and not the position obtaining as on 31st March, 1995. Nothing was brought on record of this writ petition and for that matter before the Appellate Tribunal to indicate that the financial position of the petitioner was such that it could not pay even an amount of Rs. 1,00,000/-, the extent to which the waiver application was not accepted. From the balance-sheet it appears that as on 31st March, 1995 the petitioner had stock in trade to the extent of Rs. 48,58,938/- and Sundry Debtors of the value of Rs. 63,98,353/ -. It is difficult to believe that between 31st March, 1995 and when the Appellate Tribunal took up the waiver application for consideration on 12th December, 1995 the petitioner would not have liquidated any stock in trade or realised the outstanding dues as shown in the balance-sheet aforesaid. The argument that the petitioner had made a meagre net profit of Rs. 52,846/- in the immediately preceding year as per profit and loss account of that year was of no significance, inasmuch as the contention does not take into account the fact that the net profit was shown after taking into consideration the depreciation allowance and the other concessions available to the petitioner under the Income Tax Act which represented only national entries. If the depreciation and the other concessions which were allowed to the petitioner, are added back, the liquid funds available to the petitioner would be much more than Rs. 52,846/ -.


(5) THE other contention that the Appellate Tribunal had not considered the prima facie case of the petitioner, is equally devoid of merit. The Tribunal has in fact considered the case of the petitioner and has recorded a finding that the question raised in the appeal was one of fact and the decision thereon would depend on appreciation of evidence. The question raised before the tribunal was whether the forgings manufactured by the petitioner were defective that they could have been treated as scrap as asserted by the petitioner. The allegation against the petitioner was that the so-called defective forgings manufactured by the petitioner were transferred under waste and scrap without prior permission and in violation of Rule 49 of Rules framed under the Central excises and Salt Act, 1944.


(6) CONSIDERING the totality of the circumstances, in my opinion, the order passed by the Appellate tribunal cannot be held to be an unreasonable order not based on judicial considerations which may call for any interference by this Court in exercise of its powers under Article 226 of the constitution of Ind

ia. (7) THE writ petition is devoid of merit and is accordingly rejected. (8) AFTER the order had been dictated, the counsel for the petitioner stated that the petitioner may be permitted a period of two months to make the deposit of Rs. 1,00,000/- directed by the impugned order passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New delhi. If the petitioner makes the said deposit within a period of two months, the same may be accepted, and the appeal maybe decided thereafter in accordance with law.