TMI Blog2005 (8) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... on had been imposed in terms of its earlier order dated 29-9-2004. 2. Under the earlier order dated 29-9-2004, the Tribunal in exercise of its discretion under Section 35F of Central Excise Act, 1944 had permitted the petitioner-appellant before it to pre-deposit a sum of Rs. 30 lakhs as against the subject matter of appeal viz., duty liability of Rs. 1,26,58,428/- and like sum of penalty besides penalty of Rs. 10 lakhs on the Companies and personal penalty on three officers for Rs. 5 lakhs, 1 lakh and 1 lakh respectively, such a deposit was required to be made by 4-2-2005, but the petitioner having not deposited the said amount had moved the Tribunal for deposit of only a sum of Rs. 19,77,455/- and Tribunal finding no occasion to allow t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner that the Tribunal could not have dismissed the appeal itself for such non-deposit, but should have proceeded on merits of the matter instead of dismissing the appeal. 5. In support of his submission, learned Counsel has placed reliance on the following decisions :- (1) Rajendra Kumar R. Shah v. Collector of Customs reported in 1992 (58) E.L.T. 64 (Kar.) (2) B.D. Steel and Traders v. Union of India reported in 1998 (103) E.L.T. 218 (Bom.) (3) Mehsana Dist. Co. Op. Milk P.U. Ltd. v. Union of India reported in 2003 (154) E.L.T. 347 (S.C.) = 2005 (124) ECR 385 (S.C) 6. Placing reliance on these decisions the submission made is that the Tribunal should have examined the factual position about the finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and had given a go by to penalty. Thus it cannot be said that discretion has not been properly exercised or that the Tribunal has automatically dismissed the appeal as in the Bombay case particularly as the Tribunal had extended the time for deposit when the application for modification of the order had been moved. Therefore, I am unable to agree with the submission that the imposition of the pre-condition amounts to automatic dismissal of the appeal. 9. So also is the observation in the decision of the Supreme Court. On finding that the Tribunal had exercised the discretion partially as indicated in the order itself and the reasons assigned being not at all supportive of the conclusion reached by the Tribunal the Supreme Court had remand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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