9911796707
TMI Blog2012 (10) TMI 1000X X X X Extracts X X X X X X X X Extracts X X X X ..... 702/- and imposed equivalent amount of penalty on the Applicant/Appellant under Section 11AC of the Central Excise Act, 1944. Aggrieved, the Applicant/Appellant filed the present Appeal on 15.07.2009 along with an Application for waiver of pre deposit of the duty & Penalty under Section 35F of the Central Excise Act,1944. 3. The said Application was listed for hearing before this Tribunal on 14.11.2011. One Mr. K.Goswami, clerk of the Applicant/Appellant Company appeared and sought adjournment, and it was adjourned to 17.11.2011. On 17.11.2011, none appeared for the Applicant/Appellant nor there was any request for adjournment. Accordingly, this Tribunal by its Order No.S-339-341/KOL/2011 dated 17.11.2011 had directed the Applicant/Appellant to deposit all the dues adjudged against them within a period of six weeks from the receipt of the Order and report compliance on 09.01.2012. The said Order was dispatched on 22.11.2011. On 09.01.2012, neither any one appeared for the Applicant/Appellant nor any request for adjournment was made. The matter was adjourned by this Tribunal to 30.01.2012. Subsequently, the matter was listed on 13.02.2012 for reporting compliance. 4. On 13.02.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Appeal. 6. Per contra, learned A.R(Addl. Commissioner) for the Revenue has submitted that the Applicant/Appellant did not adduce any evidence in support of their contention that the Order dated 17.11.2011 was not received by them earlier but only on 18.01.2012. He has submitted that on 09.01.2012 the Tribunal directed him to ascertain the service of the said Order and adjourned the matter to 30.01.2012. He has ascertained form the Registry that the Order was dispatched by the Registry on 22.11.2011 to the same address as mentioned in their EA-3 Application under Speed Post. Further, he has submitted that the said Order was not returned by the Postal authorities as not delivered. Further, he has submitted that the Order of the Tribunal annexed by the Applicant/Appellant with the present application is the copy marked to the Respondent Commissioner and the envelope attached as a proof of receipt of the Order on 18.01.2012, though not a clear copy, but it is verified from the Registry of the Tribunal that the despatch number shown on the envelope is not that of the Tribunal. He has also submitted that once the Tribunal has passed the pre-deposit Order after considering all aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for adjournment was sought. We find that the Applicant/Appellant were directed to make pre-deposit of all the dues adjudged within six weeks and report compliance on 09.01.2012. The said Order was dispatched to the Applicant/Appellant on 22.11.2011, through speed post. We find that even though the Applicant/Appellant's claimed that the said Order was received by them only on 18.01.2012 i.e. after around eight weeks from the date of dispatch by the Registry, and not earlier; but they had failed to substantiate the said claim. As pointed out by the Ld. A.R, the Order annexed with the present Misc. Application and the envelope, are not the ones sent by the Registry to the Applicant/Appellant. The matter was listed on 09.01.2012 for noting the compliance, but adjourned to 30.01.2012 to ascertain whether the Order was served on the Applicant. We find that the Applicant's claim that they had received the Order on 18.01.2012, and accordingly, the due date for compliance was on 29.02.2012 and hence Tribunal's Order dated 14.02.2012 is contrary to the Order dated 17.11.2012, is also devoid of merit and substance. This is evident from the conduct of the Applicant/Appellant. The Applicant/App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natural consequence will be the dismissal of appeal without entering into the merit of the controversy. Accordingly, we are of the view that in case the duty demanded or penalty levied is not deposited by the assessee in pursuance of the decision taken or application decided under Section 35F of the Act, the appeal shall be liable to be dismissed. But while dismissing the appeal it shall not be incumbent on the appellate authority to enter into merit of the controversy. The analogy may be drawn from provisions where the appeal is filed after delay without application under Section 5 of Limitation Act. In case the delay is not condoned, then the Court has to dismiss the appeal without entering into the merit of the controversy. In view of the above, though, Section 35F does not provide consequence with regard to non-payment of duty or penalty but the natural consequence will be the dismissal of the appeal without entering into the merit of the controversy." 9. We also do not find merit in the learned Advocate's contention that the Tribunal has not followed the ratio laid down in the case of Shree Gobinddeo Glass Works Ltd.(supra). In the said judgement, the Hon'ble High Court has d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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