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M/s. Inox Air Products Ltd. Versus CCE, Salem

2015 (11) TMI 1352 - CESTAT CHENNAI

Restoration of appeal - Appeal dismissed for non compliance of pre deposit order - Held that:- The ratio of the Apex Court decisions [2002 (12) TMI 87 - SUPREME COURT OF INDIA], [1985 (5) TMI 215 - SUPREME COURT OF INDIA] and High Court order [2010 (12) TMI 698 - MADRAS HIGH COURT] is directly applicable to the facts of the present case. It is pertinent to state that the applicant was supposed to comply with the order dated 18.11.2014 on 24.01.2015 but has not complied the said order not challen .....

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the applicant a further period of 4 weeks as a last chance to comply the stay order - Decided partly in favour of assessee. - ST/MISC/40091/2015, ST/MISC/40573/2015 in ST/41800/2014 - MISC. ORDER No. 41173-41174 / 2015 - Dated:- 8-9-2015 - SHRI R. PERIASAMI AND SHRI P.K. CHOUDHARY, JJ. For The Appellant : Shri M. Selvakumar, Adv. For The Respondent : Shri R. Subramanian, AC (AR) Per: R. Periasami Miscellaneous applications are filed by the applicant against the pre-deposit order of the Tribunal .....

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pplication for recall of the stay order dated 24.11.2014, which was assigned No. ST/MISC/40091/2015. The same was listed on 24.02.2015, 13.05.2015. On that day when the application was listed, the Ld. Advocate sought time on the ground that similar matter was pending before the Tribunal. It was posted for hearing on 01.07.2015 and the Ld. Advocate sought time on the grounds of non-availability of the Counsel. Again it was listed on 13.07.2015. Meanwhile, the applicant filed one more miscellaneou .....

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lication for recall of the said order. He also submitted that the applicant initially sought for extension of time for compliance. He further submitted that their appeal was dismissed by the Commissioner (Appeals) under Section 35(F) of the Central Excise Act, 1944, for non-compliance of pre-deposit and not on merits. The Tribunal's miscellaneous order is only on Section 35(F) maintainability. After considering their case rightly ordered pre-deposit of ₹ 1.30 lakhs. He submitted that t .....

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After considering the submissions of both sides, We find that this is the case where the Commissioner (Appeals) dismissed their appeal for non-compliance of the stay order under Section 35F of the Central Excise Act and Section 83 f the Finance Act, wherein the Commissioner (Appeals) ordered pre-deposit of ₹ 6,72,000/- out of total demand of ₹ 13,43,628/-. This Tribunal in its order dated 24.11.2014, considered the applicant's plea and decisions of the Tribunal relied by them in .....

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ther, the Hon'ble Supreme Court in the case of CCE Vs. Empire Industries Ltd. Vs. UOI -1985 (20) ELT 179 (S.C.) had observed that every Bench should have right to grant or vary the interim orders. The relevant para of the said order is as under:- "53. Good deal of arguments were canvassed before us for variation or vacation of the interim orders passed in these cases. Different courts sometimes pass different interim orders as the courts think fit. It is a matter of common knowledge tha .....

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reates discrimination. This is an unfortunate approach. Every Bench hearing a matter on the facts and circumstances of each case should have the right to grant interim orders on such terms as it considers fit and proper and if it had granted interim order at one stage, it should have right to vary or alter such interim orders. We venture to suggest, however, that a consensus should be developed in matter of interim orders. 7. Further we find that the Hon'ble Supreme Court in the case of CCE, .....

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d to the power of CESTAT to recall the order in case of pre-deposit order not challenged but also not complied and the High Court observed as follows:- "12.?The learned counsel would, however, contend that under Rule 41 of the Appellate Tribunal [Procedure] Rules, the Appellate Tribunal has got power to entertain such applications. Rule 41 reads as follows :- "41.?Orders and directions in certain cases. - The Tribunal may make such orders to give such directions as may be necessary or .....

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yment of pre-deposit. In these cases, the interim order passed by the Tribunal is only in respect of 25% of the demand made and regarding the balance 75%, it is the statutory obligation under Section 129-E of the Act for the petitioner to deposit. Since the petitioner did not discharge such statutory obligation under Section 129-A of the Act in respect of 75% of the payment, the appellate tribunal was right in rejecting the appeals. 14.?The learned counsel would further add that when once such f .....

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the manner known to law provided they were of the view that they had a valid ground under Section 129-E of the Act to get pre-deposit of the entire duty amount demanded dispensed with. Without doing so, it is not at all open for the petitioners to file applications subsequently under Section 129-B(2) of the Act to recall the ultimate orders passed by the appellate tribunal rejecting the appeals. In my considered opinion, as I have already stated, if once the order regarding pre-deposit of the de .....

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