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2016 (10) TMI 671 - RAJASTHAN HIGH COURTContravention of Rule 3(5) read with Section 3(4)(c) of Cenvat Credit Rules, 2004 - removal of goods without reversal of CENVAT credit - demand of excise duty - imposition of penalties in terms of provisions of Rule 15 of the Rules of 2004 read with Section 78 of the FA, 1994 - appeal preferred by the appellant and was directed to discharge the assessed liability pursuant to the adjudication order dated 30.12.10, confirmed by the appellate order dated 12/14.12.12, within four weeks - appellant did not deposit the assessed amount in compliance of the order dated 9.9.13 passed by the Appellate Tribunal and therefore, the appeal preferred was dismissed for default in compliance of the order dated 9.9.13, ignoring that the application preferred by the appellant for recalling/modification of order dated 9.9.13 was pending consideration - Whether the Appellate Tribunal was justified in dismissing the appeal preferred by the assessee for alleged non-compliance of order dated 9.9.13, without considering the application preferred by the assessee for recalling/modification of the said order, rejecting the stay petition preferred for non-prosecution? Held that: - the appellant having preferred the application as aforesaid, the Appellate Tribunal was reasonably expected to consider the said application first and could not have dismissed the appeal straight away for non compliance of the order directing pre-deposit of the assessed liability. A bare perusal of the order impugned reveals that the factum of pendency of the application preferred by the appellant for recalling/modification of the order dated 9.9.13 was brought to the notice of the Appellate Tribunal yet, ignoring the same, the Appellate Tribunal proceeded to dismiss the appeal. The order impugned passed by the Appellate Tribunal dismissing the appeal for non compliance of the order directing pre-deposit of the assessed liability without deciding the application preferred by the appellant as aforesaid, is not justified and deserves to be set aside - appeal allowed - matter remitted to the Appellate Tribunal for consideration afresh.
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