TMI Blog2013 (12) TMI 1239X X X X Extracts X X X X X X X X Extracts X X X X ..... fault with in proceeding with the matter in the absence of the petitioner, the Tribunal is bound to pass an order on merits assigning the reasons for its conclusion - the CESTAT directed the assessee to pre-deposit 50% of the duty demanded is absolutely without any reasons. The Tribunal did not go into the petitioner's plea of financial hardship, particularly the plea that the petitioner company has been referred to BIFR – Thus, the CESTAT is not justified in concluding that the petitioner failed to comply with the condition of pre-deposit of 50% of the duty demanded - the petitioner deserves to be provided an opportunity to renew its request for waiver of pre-deposit – Decided in favour of Petitioner. - Writ Petition No. 6107 of 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h on 8.3.2012. Having found that compliance of the order dated 30.11.2011 with regard to pre-deposit was not reported, the CESTAT by order dated 28.5.2012 rejected the petitioner's application for waiver and consequently the appeal was also dismissed for want of compliance with Section 35F of the Act. Aggrieved by the same, the present writ petition is filed seeking a declaration that the order of the CESTAT, dated 30.11.2011 as well as the consequential order dated 28.5.2012 are arbitrary and illegal. It is alleged in the writ petition that the order of the CESTAT dated 30.11.2011 was an ex parte order and that it was not communicated at all to the petitioner. Pleading that the petitioner's counsel by letter dated 27.2.2012 requested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.02.2013 and as such the present writ petition is not maintainable. On merits, it is contended that as the petitioner company had clandestinely removed the cotton yarn and also failed to maintain the statutory records properly, the Commissioner had rightly passed the order dated 30.12.2008. We have heard the learned counsel for both the parties and perused the material available on record. As we could see, the whole controversy is with regard to the liability of the petitioner to pre-deposit the duty demanded as provided under Section 35F of the Act, 1944. Both the impugned orders dated 30.11.2011 and 28.5.2012 came to be passed by the CESTAT only on the ground that the petitioner failed to pre-deposit the duty demanded. Therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, where it is possible to do so, decide such application within thirty days from the date of its filing. Explanation . - For the purposes of this section duty demanded'' shall include, - (i) amount determined under section 11D; (ii) amount of erroneous Cenvat credit taken; (iii) amount payable under rule 57CC of Central Excise Rules, 1944; (iv) amount payable under rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004; (v) interest payable under the provisions of this Act or the rules made thereunder. A plain reading of the above provision shows that pre-deposit is not mandatory in all appeals filed under Section 35B of the Act, but in certain appeals specified ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , we have not found prima facie case for the appellant. We direct the assessee to pre-deposit 50% of the entire amount of duty demanded, within six weeks from the date of receipt of a certified copy of this order and report compliance to the Assistant Registrar on 28.2.2012. AR to report to the Bench on 8.3.2012. Subject to such deposit, there will be waiver of pre-deposit and stay of recovery in respect of the penalties imposed on the company and its director and also the balance amount of duty with interest." Apparently, the Tribunal did not go into the petitioner's plea of financial hardship, particularly the plea that the petitioner company has been referred to BIFR and no finding as such was recorded on the issue whether the deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly with the condition of pre-deposit of 50% of the duty demanded and in dismissing the main appeal itself on that ground. It is also brought to our notice by the learned counsel for the petitioner that against the original order of the Commissioner dated 30.12.2008 the respondent herein/revenue has also preferred an appeal under Section 35B of the Act and that the same is pending on the file of the CESTAT. For the aforesaid reasons, we are of the opinion that the petitioner deserves to be provided an opportunity to renew its request for waiver of pre-deposit. Accordingly, the impugned order dated 28.5.2012 is hereby set aside and the Writ Petition is disposed of with a direction that the CESTAT shall consider the petitioner's applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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