9911796707
Advanced Search 
TMI Blog2013 (3) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the petitioner-company for restoration of its appeal which came to be dismissed for non-compliance of the provisions of Section 35F of the Central Excise Act, 1944 (hereinafter referred to as "the Act"). 2. The facts stated briefly are that by an order-in-original dated 25-7-2003 demand of Rs. 21,73,141/- with penalty of Rs. 5,000/- came to be confirmed against the petitioner-company. Against the said order the petitioner-company filed an appeal with a stay application before the Tribunal. After hearing the learned advocate for the petitioner-company as well as the learned departmental representative, the Tribunal was of the view that the petitioner-company had not made out a prima facie case in its favour for waiver of the ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs deposited certain sums with the authorities till the entire amount as directed by the Tribunal was deposited. Thereafter, the petitioner-company filed a miscellaneous application for restoration of the appeal in view of the fact that they had deposited a sum of Rs. 6,04,315/- in compliance with the condition of pre-deposit as ordered by the Tribunal. Such application appears to have been filed on or about 25th August, 2009. It appears that the said application was fixed for hearing on 22nd February, 2010 on which date the petitioner-company by a communication dated 20th February, 2010 sought for adjournment as they were in the process of engaging a counsel. By the impugned order dated 22nd February, 2010, the Tribunal observed that apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. In support of his submissions, the learned counsel placed reliance upon the decision of the Supreme Court in case of Kamala Devi v. Collector of Central Excise, Bangalore, 1998 (102) E.L.T. 514 (S.C.), to submit that even in case of considerable delay in making pre-deposit, appeals dismissed by the Tribunal have been restored. It was urged that in facts of the present case, the petitioner-company was facing genuine financial difficulties and that the conduct of the petitioners in depositing the entire amount as directed by the Tribunal over a period of time, is indicative of the fact that the petitioners had never given up the cause and as such, the petitioners should be permitted to prosecute the appeal on merits. 7. On the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed by the Tribunal by its impugned order at Annexure A. Permission granted. Disposed of as withdrawn." 9. From the above order passed by this court it is apparent that the petitioners had way back on 10th September, 2004 stated before this court that they were in a position to deposit the amount of Rs. 6 lacs. However, despite such statement, the amount of Rs. 6 lacs as directed by the Tribunal came to be deposited over a period of five years. Upon the entire amount being deposited, the petitioner filed the application for restoration in August, 2009, that is, after more than five and a half years since the order for making pre-deposit came to be passed. It may be pertinent to note that such application came to be rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial difficulties, can by no stretch of imagination be said to be a reasonable explanation. Though it is true that the right of appeal under Section 35B of the Act is a statutory right, such right is not an absolute right, but is subject to compliance with the provisions of Section 35F of the Act. Moreover, Section 35F of the Act cannot be so interpreted to mean that the same can be complied with at any point of time and as and when the same is complied with the appeal should be heard on merits. In the present case, apart from the fact that the amount directed to be paid by way of pre-deposit was not paid within the time stipulated by the Tribunal, no application for extension of time was ever moved before the Tribunal. The petitioners took ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
