Uttarakhand High Court
Subash Singh Kutiyal vs State Of Uttarakhand And Others on 8 September, 2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 1791 of 2021
Subash Singh Kutiyal ... Petitioner
Vs.
State of Uttarakhand and others ... Respondents
Advocates : Mr. Kurban Ali, learned counsel for the petitioner
Mr. Ajay Singh Bisht, learned Addl. CSC, for the State of
Uttarakhand.
Hon'ble Sharad Kumar Sharma, J.
As against the demands, which are raised for the purposes
of payment of the excise revenue, as defined under the United
Provinces Excise Act, 1910, an aggrieved person against whom
the demand is levied, has been provided with the statutory
remedy of Appeal/Revision under Section 11 of the Act. But,
however, in view of the limitations imposed by the first proviso
to Section 11, it creates an embargo that the Appeal or the
Revision would not be entertained until and unless the appellant
furnishes a deposit of 25 per cent of the total amount of tax, fee,
or penalty, which has been levied on the appellant.
2. In the second proviso to Section 11 (1) of the Act, it grants
the power of waiver to the Appellate Authority. The grant of the
power of waiver only follows with the rider that the Appellate
Authority, while granting the waiver has to record a reason, that
means the legislature in its specific intention, never intended, that
while rejecting to grant the waiver, a reason was required to be
assigned.
3. The petitioner herein, as against the demand of the excise
revenue, had preferred an Appeal/Revision under Section 11 of
the Act, which has not yet been entertained on account of the
non-compliance of the first proviso to Section 11(1) of the Act.
He approached the writ Court, preferring a Writ Petition (M/S)
No. 1151 of 2021, which was disposed of by the judgment dated
23.06.2021, directing the Appellate/Revisional Authority, to take
into consideration the petitioner's application under the second
proviso to Section 11 for the purposes of grant of waiver from
deposit of 25 per cent.
4. In compliance thereto, the present impugned order dated
17.08.2021, which is under challenge has been passed, whereby
the Revisional Authority, has declined to grant the waiver in
order to enable the petitioner, his Appeal to be heard on merits. If
the reasons which have been assigned particularly in paragraphs
10 and 11 of the impugned judgment of the Revisional Authority,
is taken into consideration, it is on the ground, that the petitioner
has not placed any material on record to show his economic
status and his logic and justification for his incapacity to deposit
25 per cent of the total amount demanded. Merely an assertion of
not being economically viable, to meet the deposit of 25 per cent,
may not be the exclusive logical reasons to consider the
implications of the waiver provided under the second proviso to
Section 11(1) 2nd proviso of the Act of 1910.
5. In order to establish a fact of not being economically
viable, the burden of proof was casted upon the petitioner and he
ought to have established before the Revisional Authority by
necessary documents to show his economic status, which he has
not done and that is what the findings had been recorded in para
11 of the judgment, which is under challenge in the present writ
petition.
6. After having heard the learned counsel for the parties at
length, as far as the findings, which are recorded therein in the
impugned order, since they do not suffer from any apparent error
or perversity, it is not required to be ventured into by this Court
under Article 226 of the Constitution of India, hence, so far it
relates to denial of the petitioner's application for seeking a
waiver is concerned, the deposit of 25 per cent of the mandatory
deposit is hereby dismissed.
7. After conclusion of the judgment, the learned counsel for
the petitioner has submitted that some reasonable time may be
granted to him, in order to deposit the mandatory deposit,
contemplated under the first proviso to Section 11 of the Act of
1910. Since grant of time to the petitioner would not be
prejudicial to the interest of the revenue, because the survival of
the revision itself will only come into existence, when the
petitioner deposits the amount, in that eventuality, the learned
counsel for the petitioner prays that a reasonable time of two
months may be granted to him to deposit 25 per cent of the total
amount. The said time to deposit the statutory deposit under the
first proviso to Section 11 of the Act is granted. The petitioner
may deposit the said amount within aforesaid period and it is then
only, the revision would be heard on its own merits and in an
event of failure to deposit the amount within aforesaid period of
two months, the revision would be deemed to be dismissed.
(Sharad Kumar Sharma, J.)
08.09.2021
Mahinder/
