TMI Blog2007 (12) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... e months time to deposit the amount fixed by the CESTAT. If it is not deposited within the aforesaid time, the appeal before the CESTAT shall stand dismissed. - 5795 of 2007 - - - Dated:- 11-12-2007 - Dr. Arijit Pasayat and Aftab Alam, JJ. [Judgment per : Arijit Pasayat, J.]. - Leave granted. 2. Challenge in this appeal is to the order passed by the High Court of Gujarat dismissing the writ petitions filed by the appellant. 3. Challenge before the High Court was to the order dated 10-1-2006 passed by the Customs, Excise Service Tax Appellate Tribunal (in short 'CESTAT') directing deposit of rupees two crores as a condition precedent for entertaining the appeal. It is to be noted that the total amount of penalty imposed was R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have a loss of Rs. 12.20 crores and in the earlier year the said loss was Rs. 17.74 crores. He submits that they are a BIFR company and pleads for full waiver of the pre-deposit requirement under Section 129E of the Customs Act to hear this appeal. The Learned SDR on the other hand takes us through the letter dated 17-12-1997 of DGFT and submits that this letter exempts and is applicable only to import of naphtha and return, stream of such naphtha. He submits that the letter relied upon by the advocate of Indian Oil Corporation, which he is making a grievance about, it stating that heptene is not known and understood as naphtha. The certificates of consumption of the return stream are also certifying the utilization and the return stre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed penalty of Rs. 10,00,00,000/-. 6. The matter was earlier before the Tribunal and at that stage matter had been remitted for fresh adjudication. By order dated 11-4-1998 the Commissioner passed a fresh order and the levy of penalty of Rs. 10,00,00, 000/- was re-affirmed. 7. Learned counsel for the appellant submitted that the bona fide of the appellant is writ large. The company has become a sick company and, therefore, insistence on pre deposit even of a part which is in this case a huge sum of rupees two crores would deprive the appellant of the statutory right of appeal. It is pointed out that from the financial statements it is clear that the appellant has suffered huge losses. For the assessment years 31st March, 2004, 31st Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chief, grave irreparable private injury or shakes a citizens' faith in the impartiality of public administration, interim relief can be given. 13. Section 129-E of the Act reads as follows : "129E. Deposit, Pending appeal, of duty and interest demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied. Provided that where in any particular case, the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 17. The above position has been highlighted in M/s Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. - (2006 (12) SCALE 303). Though the said case related to dispute under the Central Excise Act, 1944 (in short the 'Excise Act') the parameters are the same. 18. We do not find any infirmity in the order directing deposit of Rupees two crores as affirmed by the High Court. The appellant is granted three months time to deposit the amount fixed by the CESTAT. If it is not deposited within the aforesaid time, the appeal before the CESTAT shall stand dismissed. 19. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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