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TMI Blog2010 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty. This case has a chequered history. The Commissioner of Central Excise had, in adjudication of a show-cause notice, demanded duty of over Rs. 71 lakhs from a partnership firm, viz. M/s. S.G. International, of which the present applicant's father (presently no more) was a partner. The learned Commissioner had also imposed a penalty of Rs. 1.4 crores on the said firm under Section 11AC of the Central Excise Act and a separate penalty of Rs. 72 lakhs on the present applicant under Rule 209A of the Central Excise Rules, 1944. Aggrieved by the Commissioner's order, the partnership firm and the present applicant filed appeal No. E/469/98 and appeal No. E/468/98 respectively. This Tribunal, under Section 35F of the Central Excise Act, direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised signatory of the firm) seeks our indulgence on the strength of a decision of the Hon'ble Gujarat High Court and a judgment of the Hon'ble Supreme Court, cited by his counsel. 2. In the case of Scan Computer Consultancy v. UOI - 2006 (204) E.L.T. 43 (Guj.) = 2008 (12) S.T.R. 108 (Guj.) cited by the learned counsel, an appeal of the party had been dismissed by the Commissioner (Appeals) for want of pre-deposit. Apparently, the amount, which was directed to be pre-deposited, was pre-deposited belatedly. The appellant filed an application for restoration of the appeal, but the same was dismissed by the appellate Commissioner on the ground that he did not have the power of review. According to the Commissioner (Appeals), the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal's order of dismissal of appeal was dismissed by a learned single Judge of the High Court and the subsequent writ appeal filed by her was also dismissed by a Division Bench. Hence the civil appeal before the apex court. Similar civil appeals of co-appellants also came to be filed before the apex court. Their Lordships, considering the financial difficulties of two of the appellants, reduced the quantum of pre-deposit and directed them to make pre-deposit accordingly within the time stipulated. As regards Kamaladevi, the entire amount of penalty was directed to be deposited within the prescribed time. It was also made clear that, if any amount had already been deposited, the same shall be adjusted towards the pre-deposit ordered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ petitioners had accepted this Tribunal's order directing pre-deposit of the entire amount of duty and an amount of Rs. 35 lakhs towards penalty. Their Lordships had also held that this Tribunal's direction for pre-deposit was not liable to be set aside. Accordingly, the Hon'ble High Court affirmed this Tribunal's order directing pre-deposit. However, the Hon'ble High Court's order also indicates that an opportunity was given to the writ petitioners to establish their bona fides by depositing at least a part of the amount which was directed by this Tribunal to be pre-deposited. The learned counsel for the writ petitioners, however, expressed inability to make such pre-deposit, whereupon the Hon'ble High Court held that its extraordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal was also dismissed by this Tribunal after noting that a major part of the amount had already been deposited by the party. The writ petition filed by the party against the Tribunal's order was also dismissed. But the circumstances, in which the writ petition came to be dismissed, deserve to be taken note of. The present application filed by the party is for restoration of his appeal on the ground that the entire amount was deposited. Today, it is not in dispute that the entire amount of Rs. 35 lakhs covered by the Tribunal's order passed under Section 35F of the Act was either deposited by him or otherwise recovered by the department. These payments/recoveries have taken place either during the pendency of proceedings before the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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