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M/s. Lords Chloro Alkali Ltd. Versus Commissioner of Central Excise (Jaipur-I) & Another.

2015 (12) TMI 1208 - RAJASTHAN HIGH COURT

Waiver of pre deposit - Section 35F - Held that:- One after the other three successive writ petitions were preferred by petitioner before the High Court of Delhi assailing the orders passed by the CESTAT and this fact cannot be ruled out that petitioner-company remained sick for a long time and became viable and started commercial production in February, 2015 and so also the fact that right of appeal which has been provided under the statute, ordinarily is not to be frustrated and in the present .....

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fore the CESTAT deserves to be restored and heard on merits. - petition is disposed of with the direction that if the petitioner now complies with the condition of pre-deposit in terms of the order of CESTAT dt.27.04.2006 on his application filed u/Sec.35F of the Act, be restored and the same be heard on merits. - Decided in favor of assessee. - D.B.Civil Writ Petition No.27/2009. - Dated:- 5-8-2015 - MR. AJAY RASTOGI AND MR. ANUPINDER SINGH GREWAL, JJ For the Petitioner : Mr. S. S. Hora, Counse .....

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earlier emerged during the production of Caustic Soda which could be used in the edible products like in solvex plants. It has been alleged in the petition that petitioner-Company was declared sick by BIFR vide order dt.15.01.2002. The scheme of its rehabilitation with reliefs and concession was sanctioned on 30.11.2006 by BIFR and during pendency of the writ petition on 26.03.2010 on company's net worth becoming viable it was deregistered by BIFR with direction to implement the provisions .....

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for recovery of duty and imposition of penalty and after affording opportunity of hearing, the adjudicating authority vide its order dt.27.06.2005 confirmed the Excise Duty of ₹ 12,63,598/- along with the penalty of ₹ 1,00,000/-. The petitioner-Company being aggrieved by the order, in original, filed appeal before the Commissioner (Appeals) which came to be rejected vide order dt.08.12.2005 and that came to be challenged in appeal before the Central Excise & Service Tax Appellat .....

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before 21.06.2006 failing which the appeal before the CESTAT will stand dismissed. 5. In all fairness, counsel for the petitioner submits that the jurisdiction to question the order of CESTAT lies before the Rajasthan High Court but on the ill advise extended to the petitioner, the order dt.27.04.2006 came to be challenged by filing of Writ Petition No.10553/2006 before the High Court of Delhi but before there could be any order passed on the writ petition filed before the High Court of Delhi, .....

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pliance of the order dt.27.04.2006 on the last date of its compliance i.e. on 21.06.2006 and the earlier writ petition also came to be dismissed, the petitioner was advised to file a fresh writ petition before the High Court of Delhi being Writ Petition No.1097/2007 and that came to be dismissed as withdrawn on 13.03.2007 in view of the fact that question of law raised before the High Court of Delhi has already been raised before the CESTAT by filing of review/recalling application but to the di .....

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e High Court of Delhi, objection was raised that in the light of judgment of the Apex Court in Ambica Industries Vs. CCE reported in 2007 (213) ELT 323 (SC), jurisdiction lies with the Rajasthan High Court. Taking note thereof,the petitioner withdrew the writ petition with leave to approach the appropriate jurisdictional High Court and that liberty was granted to petitioner by the High Court of Delhi while dismissing the writ petition vide order dt.25.09.2007. 7. However, by filing three separat .....

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company for a long time and it has become viable in the recent past and started commercial production from February, 2015 and right of appeal is a statutory right provided under the Act has been denied to him only for the reason that he has failed to comply with the condition of pre-deposit in terms of order dt.27.04.2006 passed by the CESTAT and further submits that the statutory right of appeal, is not dependent upon compliance of pre-deposit, as contemplated u/Sec.35F of the Act and even if t .....

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] and submits that without going into merits the question which he has been raised in the instant petition, he has instructions from his client to inform that since the petitioner-company has now become viable and started commercial production, he needs liberty of this court that on complying with the conditions of pre-deposit in terms of order of CESTAT dt.27.04.2006, the appeal which he has preferred before CESTAT at least may be restored and heard on merits. 9. Per contra, counsel for respond .....

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