TMI Blog2017 (9) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... t possible to accept the submission of learned Senior Counsel for the appellant that the order dismissing the Appeal should be recalled and the Appeal should be heard on merits since M/s Sameer Ispat has now deposited the entire amount of duty. The order passed by the Division Bench in SAMEER ISPAT VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (1) TMI 713 - ALLAHABAD HIGH COURT] filed by M/s Sameer Ispat has attained finality. If the Appeal could not be heard after the deposit of amount of ₹ 5 lacs, there is no good reason as to why it should be heard after deposit of certain additional amount. Appeal dismissed - decided against appellant. - Central Excise Appeal No. - 187 of 2015 - - - Dated:- 18-9-2017 - Dilip Gupta And Prabhat Chandra Tripathi JJ. For the Appellant : Suyash Agarwal,Mayank Agrawal For the Respondent : R.C. Shukla, Sr.S.C.,Amit Mahajan,Krishna Agarwal ORDER This Appeal has been filed under Section 35G of the Central Excise Act, 1944 (the Act) to assail the order dated 27 March 2015 of the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (the Appellate Tribunal) by which the application filed by the appellant (M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, filed Writ Tax No.1615 of 2005 before the High Court which was disposed of on 8 December 2005 by a Division Bench of this Court with the following observations: Looking to the fact that the petitioner Unit lying closed since 1997, we substitute the order of the Tribunal and the direct the petitioner to deposit a sum of ₹ 5 lakhs (Rupees five lakhs only) within one month from today and furnish the indemnity bond for the entire disputed amount within aforesaid period to the satisfaction of the authority concerned. If the petitioner fails to comply with either of the condition, the appeal filed by it before the Tribunal shall not be entertained. It is made clear that if petitioner fulfils the conditions of this order, the Tribunal shall hear and decide the appeal on merits. The appeal may be disposed of preferably within three months after the deposit. Writ petition is disposed of finally. M/s Sameer Ispat did not deposit the amount and so the Appeal filed by it before the Appellate Tribunal was dismissed on 10 January 2006 on the ground that the condition precedent for filing the Appeal had not been complied with. The order dated 10 January 2006 passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed Writ Tax No.518 of 2012 to assail the order of the Appellate Tribunal rejecting the application for recall of the order dated 10 January 2006. The High Court on 2 May 2012 passed the following order: It is not disputed that the aforesaid amount of ₹ 5,00,000/- was not deposited within the time provided in the order of the High Court. Therefore, the proper course was to seek extension of time from the Court itself if that was possible. In view of the above, learned counsel for the petitioners submits that he wants to seek extension of time in the earlier application. He may do so by making a proper application in this regard, if he so desires. As prayed, list this petition in July 2012. M/s Sameer Ispat thereafter filed a Time Extension Application along with a Delay Condonation Application in Writ Tax No.1615 of 2005 that had earlier been disposed of on 8 December 2005. Both these applications were rejected by order dated 24 May 2012 and the relevant portion of the order is reproduced below: This Court directed the petitioner to deposit the amount of ₹ 5 lacs within one month from the date of order and furnishing the indemnity bond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s now seek a direction to the Tribunal to dispose of the appeal on merits having deposited an amount of ₹ 5 lacs allegedly in January 2012. The said relief cannot be granted by this Court in the present proceedings once the petitioners have exhausted all the available remedies in respect of the order of pre-deposit. That apart, another writ petition filed by the petitioners being Writ Tax No.518 of 2012 (M/S Sameer Ispat and Others Vs. Custom, Excise and Service Tax) against the order of the Tribunal dismissing the appeal filed by the petitioners for non-compliance of the order requiring them to deposit ₹ 5 lacs has also been dismissed by a learned Single Judge of this Court on 17 April 2014 . In these circumstances, it would not be appropriate for this Court to issue any direction at variance with the direction which has already been issued by this Court earlier. The petition is, accordingly, dismissed. There shall be no order as to costs. (emphasis supplied) It is, thereafter, that M/s Sameer Ispat filed a Misc. Application on 25 August 2014 before the Appellate Tribunal for recalling the order dated 10 January 2006 and for hearing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.2005, which were to the effect that if the petitioner-applicant fulfils the condition of such order, then the Tribunal shall hear and decide the appeal on merits. Since, the said order has not been complied with by the applicant in true letter and spirit, entertaining the application for restoration of appeal will be contrary to the principles of judicial discipline, which require that the orders of the higher courts should be followed unreservedly by the subordinate/lower authorities. In view of above, we agree with the submissions of the learned A.R. for Revenue that the applicant can seek legal remedy, if any, only from the Hon'ble High Court and not from the Tribunal. The substantial questions of law that have been framed in this Appeal are as follows: 1. Whether the CESTAT was justified in rejecting the recall application by declining to recall the order dated 10.01.2006 and to adjudicate the appeal on merits despite the appellant having deposited the entire amount of duty of ₹ 56,06,662/- in view of section 35F of the Central Excise Act, 1944? 2. Whether the CESTAT was justified in applying the doctrine of merger on the question of pre-deposit in a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Authority the duty demanded or the penalty imposed. However, where in any particular case, the Appellate Tribunal is of the opinion that the deposit of duty demanded or the penalty levied would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose to safeguard the interests of the revenue. In the present case, the Appellate Tribunal had directed M/s Sameer Ispat to deposit the amount within eight weeks but this direction was modified by the High Court in Writ-Tax No.1615 of 2005 by directing that it may deposit ₹ 5 lacs within one month. This direction was also not complied with as a result of which the Appellate Tribunal dismissed the Appeal on 10 January 2006. The application filed by M/s Sameer Ispat before the High Court for modification of its order was rejected on 21 April 2006 and the application filed for recall of that order was also rejected on 12 November 2009. Even the application filed by M/s Sameer Ispat for recall of the order dated 10 January 2006 was rejected by order dated 3 January 2012. M/s Sameer Ispat then deposited ₹ 5 lacs and filed a restoratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. We have heard the learned counsel for the parties to the lis and carefully perused the records of the case. 8. Keeping in view the peculiar facts and circumstances of the case, we are of the considered opinion that if we direct the Tribunal to accept the pre-deposit amount as deposited by the appellants and hear the appeal on merits, it will not cause any prejudice to either side. 9. In view of the above, we now direct the Tribunal to accept the pre-deposit amount paid by the appellants, which is in compliance with its earlier order and then decide the appeal on merits, in accordance with law and without reference to the period of limitation. We request the Tribunal to dispose of the appeal as expeditiously as possible, at any rate within six months from today. We clarify that all contentions of both the parties are left open. 10. The civil appeal is disposed of in terms of the aforesaid observations and directions. We clarify that this order shall not be treated as precedent in any other case. Ordered accordingly. (emphasis supplied) It is clear that the order was passed in view of the peculiar facts and circumstances of the case and it was also d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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