TMI Blog2007 (8) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... Sharma, CGSC for the Respondent. [Judgment]. - M/s Isha Chemicals and Micronutrients Pvt. Ltd. has filed this writ petition questioning Customs, Excise Gold (Control) Appellate Tribunal's Order dated 02-09-2002 refusing restoration of its appeal which had been dismissed earlier because of petitioner's non-appearance, omission to file application seeking waiver of deposit of the amount questioned in the appeal and non-deposit of the duties and penalties. 2. Projecting its grievance against the impugned order and giving the history of the case, the petitioner company says that Deputy Commissioner of Central Excise had passed an order confirming duty and imposing penalty of Rs.3 lacs under Rule 173-Q of the Central Excise Rules, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltural Grade Zinc Sulphate falling under subheading 2833 of the Central Excise Tariff Act, 1985. The Company was found to have manufactured "Zinc Slabs" falling under sub-heading 7901.10 of the Central Excise Tariff Act, 1985 by the Central Excise Staff on their visit to the factory premises of the petitioner on 15-05-1992. Two metal slabs having markings of "Zinc" weighing 57.440 kilograms and valued at Rs.3532.56 were recovered from the factory premises. Having reasons to believe that the "metal slabs" had been manufactured by the petitioner company and cleared clandestinely without payment of Central Excise Duty, these were seized by the Central Excise Staff. Further scrutiny of the records of the Company revealed that the Company had su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zinc metal on payment of fine of Rs. 1900/-Rs.4200/- Rs.4800/- in lieu of confiscation respectively. (b) The 'Noticees' must forthwith pay the Central Excise duty of Rs. 6,42,859.00. (c) I impose a penalty of Rs. Three lacs on the 'Noticees'under Rule 173Q, of the Central Excise Rules 1944 for contravening various provisions of law as alleged in the Show Cause 'Noticees'. (d) I impose personal penalty of Rs. Two lacs on Sh. N.J. Durani Director of the 'Noticees'. (e) Interest is payable as laid down under Section 11AA 11AB of the Act of 1944." 7. The Company filed an appeal before the Commissioner (Appeals) Central, Excise and Customs, Chandigarh seeking stay of the Deputy Commissioner's Order. The Commissioner (Appeals), d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of this writ petition additionally on the ground that, if aggrieved, by the action of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, the petitioner company was required to file an appeal under Section 35-L of Central Excise Act, 1944 before Hon'ble Supreme Court of India and a reference was permissible at the instance of the Tribunal to the High court in terms of Section 35G of the Central Excise Act, 1944. 10. I have heard learned counsel for the parties and perused the orders passed by the Authorities under the Central Excise Act, 1944. 11. Faced with the situation that the writ petition of the petitioner company involved adjudication of disputed questions of fact as to whether or not the repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 (Del), to support his submission. 13. Perusal of the Order of Deputy Commissioner Central Excise indicates that the petitioner company had been afforded sufficient opportunity to oppose imposition of penalty and duty on the seized excisable items. The company and its representative had, however, avoided participation in the proceedings on one, pretext or the other. The Deputy Commissioner, Central Excise had thus, on the basis of facts, appearing from the records, found the petitioner company responsible for evading Central Excise Duty in clandestinely clearing "zinc metal" from its premises to those from whose premises it had been later recovered and seized. The conduct of the petitioner company and its Managing Director, as is evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution of India. 16. Judicial review of the orders passed by the statutory authorities would be permissible only if such authorities were found to have acted contrary to the provisions of the laws in force or to the provisions of the Constitution of India. Such review may not permit delving deep in factual matters such as; whether the counsel had been negligent in filing the appeal and in its prosecution before the statutory authorities?, whether the litigant did not have the financial position to satisfy the statutory requirement of depositing the impugned penalty and duty before filing the appeals before the statutory Forums? 17. For all what has been said above, I do not find any case in favour of the petitioner company to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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