TMI Blog2012 (8) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... - 23-8-2012 - MR. V. M. SAHAI AND MR. N.V. ANJARIA, JJ. MR HARDIK P MODH FOR THE APPELLANT MR KALPESH N SHASTRI FOR THE RESPONDENT CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE N.V. ANJARIA) In the present petition under Article 226 of the Constitution, the petitioners have prayed for a writ to set aside the three orders of the Custom, Excise and Service Tax Appellate Tribunal. First is the order dated 12.03.2007 passed in stay applications filed in the Tax Appeals requiring the petitioners to deposit ₹ 50 lakhs each within eight weeks by way of predeposit as condition of stay. As no pre-deposit was made, order dated 06.06.2007 was passed dismissing the main appeals. The second challenge is against that order. The third order sought to be set aside is the order dated 18.01.2012, whereby the Tribunal has dismissed petitioners' application for restoration of the main appeals. 2. The facts of the case run thus. The first petitioner is a partnership firm engaged in the business of processing of textile fabrics. The second petitioner is a proprietory firm doing the same business. The preventive officers of the Central Excise Commissionerate visite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of office objections. 2.3 On 23.08.2011, the Assistant Commissioner, Central Excise, Division- II, Rajkot passed order attaching the property being Plot No.1, 2, 3, Survey No.822 at Jetpur together with the factory building standing thereon, in exercise of powers under section 11 of the Central Excise Act, 1944, section 142(1)(c)(ii) of the Customs Act, 1962 read with the Customs (Attachment of Property of Defaulters for Recovery of Govt. Dues) Rules, 1995. The valuation report indicated that the market value of the property was ₹ 65,29,000/-. 2.4 On 01.11.2011, petitioners filed Misc. Applications in their original Appeals No.E/1161/2005 and E/1162/2005. In the restoration application, it was pleaded that earlier a Tax Appeal was filed before the High Court which was dismissed as the office objections were not removed. It was averred further that there was a change of circumstances thereafter because the Excise authorities had attached the property. It was the further case that the applicant was earning only salary income and had no financial means to make the deposit. On these pleas, it was prayed to restore the main appeals on its original number. Secondly, it was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We considered the facts on record and the pleadings of the parties. 4.1 It was submitted by learned advocate for the petitioners that they had deposited ₹ 16,78,400/- and further that now the property of the value of ₹ 65 lacs is also in the custody of the department. He submitted that the Tribunal ought to have allowed the restoration application and heard the appeal on merits by dispensing with the pre-deposit. It was next submitted that the company had stopped manufacturing activity since long and the property was rented to M/s Jai Khodiyar Process and that the petitioners were doing job work and earning job charges every year. It was submitted that the partners/petitioners are not in position to deposit the amount and that the bread and butter was taken away by the department. He raised a contention that the circumstances had changed. 4.2 Learned advocate for the petitioners relied on decision in Venus Electronics and Control Pvt. Ltd. Vs. Commissioner of Customs, Kandla [2006 (198) ELT 547 (Tri. Mumbai)] for the proposition that requirement of pre-deposit was only procedural and it could not extinguish statutory right to appeal. On the basis of decision in Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be entertained. 5.1 Looking at it from another angle, the present petition came to be filed after dismissal of restoration application. For period from 2007 to 2011, the petitioners remained inactive and indolent. Not only that, as stated above, they did not pursue the statutory appeal which they had filed to challenge the orders in question. The competent authority of the Excise Department attached the property on 23.08.2011. Only thereafter the petitioners again woke up from their slumber and filed restoration application. No explanation has been coming forth in respect of four years period from 2007 to 2011. The first segment was from 2007 when the original appeals were dismissed for non-compliance of pre-deposit order till July 2008 when the statutory Tax Appeal before this Court was dismissed on technical ground, which was not pursued for restoration. No reason is given for not pursuing the appeal. Again, until 23.08.2011 when the property was attached, the petitioners remained silent. 5.2 It is evident from the sequence of events that allowing of loss of time was culpable on part of the petitioners. There was a yawning inaction on their part for four years. Afte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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