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2017 (9) TMI 1702

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? - Held that:- Section 35F of the Act provides that the person desirous of appealing against the order imposing duty or penalty has to deposit with the Adjudicating 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. - It is not 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 [2 .....

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ner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing. …............................... The waiver application filed by M/s Sameer Ispat was disposed of on 5 October 2005 with a direction to deposit ₹ 15 lacs within a period of eight weeks and to report compliance of such deposit on 9 December 2005. M/s Sameer Ispat, however, 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 furni .....

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ication, the order dated 21st April, 2006 has been sought to be recalled. Having heard learned counsel for the petitioners, we do not find any good ground to recall the order dated 21st April, 2006. The application is dismissed accordingly. It transpires that subsequently M/s Sameer Ispat filed an application before the Appellate Tribunal on 27 January 2010 for recall of the order dated 10 January 2006. This application was rejected by the Appellate Tribunal by order dated 3 January 2012. It also transpires that thereafter M/s Sameer Ispat deposited ₹ 5 lacs and then filed a restoration application before the Appellate Tribunal. This application was also rejected by order dated 29 February 2012. M/s Sameer Ispat then 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 a .....

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ith the order of deposit but filed a modification application in the writ petition praying for a waiver. The application was dismissed on 21 April 2006. Thereafter, the petitioners moved a recall/restoration application, which was also dismissed on 12 November 2009. The Tribunal dismissed the appeal filed by the petitioners for noncompliance of the order of pre-deposit. The application filed for recall of the order of the Tribunal was also dismissed. Thereafter, the petitioners filed an application for an extension of time to deposit the amount of ₹ 5 lacs which was also dismissed by the Division Bench of this Court on 24 May 2012. The petitioners 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 .....

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ion at this stage. In context with doctrine of merger of order, the Hon'ble Allahabad High Court in the case of Kisaan Gramoudyog Sansthan vs. CCE, Kanpur reported in 2015 (316) ELT 406 (All.) has held that once a substantive appeal has been filed before the High Court against an order of the Tribunal on the application for waiver of pre-deposit, the order of the Tribunal, in such a case, would merge with the order of the High Court. 8. Further, the Tribunal cannot entertain the M.A. for restoration of appeal, in view of the specific observations made by the Hon'ble High Court vide order dated 08.12.2005, 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 appli .....

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ion in this Appeal. It is his submission that the Appellate Tribunal has for good and cogent reasons rejected the application filed by M/s Sameer Ispat for recalling the order dated 10 January 2006. We have considered the submissions advanced by learned counsel for the parties. It is not in dispute that the Appeal filed by M/s Sameer Ispat under Section 35F of the Act was dismissed for non-compliance of the directions for deposit of the amount. Section 35F of the Act provides that the person desirous of appealing against the order imposing duty or penalty has to deposit with the Adjudicating 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 .....

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vide order dated 22.02.2012. It is an admitted fact that the said order has attained finality. ….................. 6. After depositing the amount with the Excise Department, the appellants filed a miscellaneous application before the Tribunal for restoration of their appeals on the ground that its directions have been complied with. The said application was dismissed, vide order dated 08.04.2013. Further the appeal, before the High Court, against the aforesaid order of the Tribunal was also dismissed by the impugned judgment and order, dated 12.11.2014. 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 w .....

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amount is not deposited within the time stipulated above, the order of the dismissal of appeal by the appellate authority would operative. In M/s Inventa Electronics (P) Ltd., on which reliance has also been placed by learned counsel for the M/s Sameer Ispat, the Supreme Court observed : A short question arises for our consideration i.e. whether on the facts and circumstances of this case we should alter pre-deposit condition imposed by the tribunal for entertaining the appeal of the appellant. Taking into consideration the facts and circumstances of this case we think that, in addition to ₹ 15,00,000/- cash deposit already made by the appellant, the appellant shall furnish a bank guarantee to the satisfaction of the authorities concerned for a sum of ₹ 5,00,000/- from a Nationalised Bank within three months from today. With the above direction the appeal is disposed of and if such bank guarantee of ₹ 5,00,000/- is furnished the tribunal shall proceed to hear the appeal on merits. The Appeal had not been dismissed on account of non-deposit and only the direction to deposit the amount had been modified. This decision also, therefore, does not help the M/s Sameer I .....

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