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2016 (10) TMI 572 - CALCUTTA HIGH COURT

2016 (10) TMI 572 - CALCUTTA HIGH COURT - 2016 (334) E.L.T. 517 (Cal.) - Modification of the order - Waiver of the pre deposit - Negative net worth of the company - the petitioner failing to convince the Tribunal that the entirety of the pre-deposit should be waived, the petitioner was not entitled to carry an application for modification on the basis of an order of a Coordinate Bench or an order of the Supreme Court which could have been relied upon on October 28, 2015 - The doctrine of precede .....

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f 2016 - Dated:- 2-2-2016 - Sanjib Banerjee, J. Shri Atish Dipankar Ray and Soumyajit Mishra, for the Petitioner. Shri S.B. Saraf and K.K. Maiti, for the Respondent. ORDER The petitioner complains of the failure by the Customs, Excise and Service Tax Appellate Tribunal, Eastern Zonal Bench to modify a previous order on the ground that a coordinate Bench of the Tribunal had taken a different view in similar circumstances. 2. An appeal under Section 35B of the Central Excise Act, 1944 was ent .....

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the appeal. Compliance was directed to be reported on January 4, 2016 and the order observed that the failure to deposit the amount would result in dismissal of the appeal without further reference. 3. The petitioner did not make the further deposit of ₹ 6 lakh in terms of the order dated October 28, 2015. Instead, the petitioner applied for modification of the order of admission and such modification application came to be taken up on January 4, 2016, the date fixed by the order of O .....

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Such order of the Supreme Court of March 7, 2007 [2010 (256) E.L.T. A61 (S.C.)] is quoted : Delay condoned. Leave Granted. The appeal of the assessee has been dismissed by the Tribunal for non-deposit of ₹ 1.40 Crores. The assessee complains that it has already made an application pointing out to the Tribunal that the Company is under BIFR. According to the assessee, its application dated NIL September, 2005, being Modification Application No..../2005, is pending even today before the Tri .....

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of the modification application in accordance with law. The Civil Appeal is disposed of accordingly. 5. Nothing in the order of the Supreme Court amounts to the enunciation of any law that will be binding under Article 141 of the Constitution to the effect that when the net worth of an assessee company is negative, the entire pre-deposit is to be waived. As would appear from the Supreme Court order, it made some observations and left the matter for consideration by the appropriate Tribunal .....

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ission of the appeal passed on October 28, 2015. 7. It was for the petitioner to demonstrate on October 28, 2015 when the appeal was taken up for admission as to why there should be no pre-deposit. Upon the petitioner failing to convince the Tribunal that the entirety of the pre-deposit should be waived, the petitioner was not entitled to carry an application for modification on the basis of an order of a Coordinate Bench or an order of the Supreme Court which could have been relied upon on .....

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