1. Heard the learned Counsel for the writ petitioner and learned Senior Standing Counsel (Central) for the Union of India.

2. Under section 35F of the Central Excise Act, 1944, any person appealing against the order in terms of Chapter VI-A of the, is bound to deposit the amount demanded as duty so as to make his appeal maintainable. But the proviso to that section confers power on the Collector (Appeals) or the Appellate Tribunal to dispense with such deposit subject to the conditions as it may deem fit, if in its opinion, the deposit of duty demanded would cause undue hardship on the appellant. In this case, the total demand raised by the original authority was of the sum of Rs. 90,44,735. It was against that order the writ petitioner filed the appeal, before the Customs, Excise and Gold Control Appellate Tribunal. The representative of the assessee submitted before the Tribunal that the demand for removal of goods to Dimapur would amount to Rs. 54 lakhs approximately. Taking note of that submission, the demand imposed on the writ petitioner and the circumstances of the case, the appellate Tribunal ordered that the assessee should deposit of Rs. 30,00,000 within twelve weeks from 17.10.2001 in terms of Section 35F of the.

3. Learned Counsel for the writ petitioner challenging the order of the Tribunal, submits that this Court may further reduce the amount of deposit. We see no material on the basis of which we can substitute our discretion in that behalf which is essentially conferred on the appellate Tribunal by the proviso to section 35F of the. On going through the order impugned and the admission made, it cannot also be said that the discretion vested with the authority has been exercised perversely or so unreasonable or arbitrarily as to warrant interference by us in this proceeding under Article 226 of the Constitution of India. Learned Counsel for the writ petitioner relied on a decision of the Supreme Court in the case of Polar Industries Ltd. v. The Commissioner of Central Excise, Meerut and Ors. AIR 2000 SC 3503 [LQ/SC/1999/1024] , wherein the Supreme Court directed the Appellate Authority to take up the appeal in that particular case without insisting upon any deposit as contemplated by section 35F of the. When the Statute which provides for an appeal, also provides the condition to make the appeal maintainable; it is not for this Court to vary or delete the condition and direct that the appeal be entertained without fulfilling the condition. The power that may be available to the Supreme Court under Article 142 of the Constitution of India, is not available to this Court while exercising jurisdiction under Article 226 of the Constitution of India. This aspect has been emphasized by the Supreme Court in a number of decisions. Therefore, we are not able to agree that in view of the decision relied on by learned Counsel for the petitioner, we are also entitled to exercise the same power as was exercised by the Supreme Court. Hence, we are not in a position to accede to this argument on behalf of the writ petitioner. In this situation, we do not find any reason to interfere with the impugned order. We dismiss this writ petition.

4. Learned Counsel for the writ petitioner submitted that at least some time may be given for making the deposit ordered. The writ petitioner was directed to deposit the amount within 12 weeks from 17.10.2001 and that time would expire by 17.1.2002. Taking note of the submission made by the learned Counsel for the writ petitioner, we extend the time for compliance with the order of the Tribunal dated 17.10.2001, till 17.2.2002.