TMI Blog2014 (4) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.0 As common question of law and facts arise in both these petitions, they are being disposed of by this common judgment and order. 2. By way of Special Civil Application No.17714 of 2013 under Article 226 of the Constitution of India, the petitioner -original applicant has prayed for following relief: B. Be pleased to quash and set aside impugned order no. M/14963-14964/2013 dated 21.10.2013 passed by the Hon'ble CESTAT, West Zonal Bench, Ahmedabad: C. Be pleased to, as a consequence thereof, to direct the Hon'ble CESTAT, West Zonal Bench, Ahmedabad to restore main Appeal being No. E/1506/2010 and the allied Stay Application being No. E/S/1409/2010 on file or; 3. By way of Special Civil Applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35 of the Act within two weeks from the date of receipt of the order, failing which appeal shall be liable for dismissal. It appears that even order dated 7.9.2010 passed in Miscellaneous Application of depositing of 10% of the duty and penalty confirmed was not complied with and therefore, the First Appellate Authority dismissed both the appeals for non-compliance of provision of Section 35F of the Act. 4.2 Feeling aggrieved and dissatisfied with the order passed by the First Appellate Authority dated 30.9.2010 in dismissing the Appeals No. 1506-1507 of 2010 for non-compliance of the provisions of Section 35 of the Act, the respective petitioners preferred appeals before the learned Customs, Excise and Service Tax Appellate Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned advocate on behalf of the respective petitioners has submitted that as such at the time of hearing of stay applications before the learned Appellate Tribunal nobody could remain present on behalf of the petitioners as learned advocate withdrew his Vakalatnama and as such the petitioners were in acute financial crises. It is submitted that as such the possession of the unit was taken over by their bankers under the SARFAESI Act for non-discharge of amount of loan taken by them. It is submitted that as such there was no mala fide intention on the part of the petitioners in not depositing of even 10% of the duty and penalty. Shri Kariel, learned advocate for the respective petitioners has stated at the bar under the instructions from his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty and penalty confirmed, we are of the opinion that one opportunity should be given to the petitioners to submit their case on merits before the First Appellate Authority. 8. Under the circumstances, both the petitions are disposed of and it is ordered that on deposit of 15% of the confirmed duty and penalty confirmed, by the petitioner of Special Civil Application No.17714 of 2013 and on deposit of 15% of the penalty (Rs.7 lacs) by the petitioner of Special Civil Application No.17715 of 2013 to be deposited within a period of four weeks from today as pre deposit under Section 35F of the Act (agreed by the respective petitioners) and on production of receipt of the same within a period of one week from the date of such deposit, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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