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2009 (6) TMI 222 - HC - Central ExciseThese writ petitions were moved challenging the orders passed by Tribunal dismissing the appeals for non-compliance of the orders passed by it directing predeposit – (i) whether the Appellate Tribunal was justified in passing orders dismissing the appeals for non-compliance of its directions directing deposit of an amount by the appellants under Section 35F of the Central Excise Act after the insertion of 35C (2A); (ii) whether an appeal can be dismissed for non-compliance of the order directing predeposit on the day when it is posted for compliance? (iii) whether the Appellate Tribunal was justified in dismissing the appeals during the pendency of the writ petitions challenging the order of predeposit passed by the Appellate Tribunal? and (iv) whether before passing the impugned orders directing predeposit, the Appellate Tribunal had formed its ‘opinion’ as stipulated in Section 35F? - even in case of non-compliance with pre-deposit, appeal to be decided on merits, as far as possible, within three years from date of filing – tribunal’s order dismissing appeal on day of compliance is contrary to Rule 41 of CESTAT (Procedure) Rules, 1982 and it is illegal - tribunal was having knowledge about filing of petition so it was unjust to pass orders dismissing appeal – appeal is conditional right – right of appeal not automatic – appeal maintainable when substantial question of law involved – no constitution fetter in invoking extraordinary jurisdiction even when alternative remedy exits - Merely stating in the order that order is being passed after hearing the both sides, after perusing the records and the learned members were satisfied and that the main appellants do not have a prima facie case for waiver of predeposit, are not sufficient to justify an order. In my view, there should have been deliberation and formation of opinion which should be evident from the order. Since those are absent, the order impugned cannot be sustained. – petition is allowed
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