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2017 (9) TMI 1702 - HC - Central ExcisePre-deposit - Doctrine of Merger - Recall of order - appeal rejected on account of non compliance of the directions for deposit of the amount contemplated under Section 35F of the Act - Whether the CESTAT was justified in rejecting the recall application by declining to recall the order dated 10.01.2006 and to adjudicate the appeal on merits despite the appellant having deposited the entire amount of duty of ₹ 56,06,662/- in view of section 35F of the Central Excise Act, 1944? Held that:- Section 35F of the Act provides that the person desirous of appealing against the order imposing duty or penalty has to deposit with the Adjudicating Authority the duty demanded or the penalty imposed. However, where in any particular case, the Appellate Tribunal is of the opinion that the deposit of duty demanded or the penalty levied would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose to safeguard the interests of the revenue. It is not possible to accept the submission of learned Senior Counsel for the appellant that the order dismissing the Appeal should be recalled and the Appeal should be heard on merits since M/s Sameer Ispat has now deposited the entire amount of duty. The order passed by the Division Bench in SAMEER ISPAT VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (1) TMI 713 - ALLAHABAD HIGH COURT] filed by M/s Sameer Ispat has attained finality. If the Appeal could not be heard after the deposit of amount of ₹ 5 lacs, there is no good reason as to why it should be heard after deposit of certain additional amount. Appeal dismissed - decided against appellant.
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