2008 (1) TMI 754 - AT - Central Excise

Summary

Issues:
1. Restoration of appeal dismissed for non-compliance with Section 35F of the Central Excise Act.
2. Consideration of waiver and stay of recovery in view of ex parte orders and attachment of property.
3. Prima facie case for waiver of pre-deposit and stay of recovery based on case law and decisions of higher courts.

Analysis:

Issue 1: Restoration of appeal
The appellants filed an application for restoration of their appeal which was dismissed due to non-compliance with Section 35F of the Central Excise Act. The appellants were directed to pre-deposit a certain amount within a specified period, but no evidence of pre-deposit was provided, leading to the dismissal of the appeal. The appellants argued that they were not given an opportunity to present their case against pre-deposit as the orders were passed ex parte. Citing a decision of the Bombay Court, they claimed that using Cenvat credit for duty payment was legitimate. The Tribunal, after considering the submissions, allowed the application for restoration, emphasizing that ex parte orders should not prejudice the assessee and noting the attachment of property by the department.

Issue 2: Waiver and stay of recovery
In light of the case law cited by the appellants and the decisions of higher courts, the Tribunal found a prima facie case for waiver of pre-deposit and stay of recovery. The orders passed ex parte were deemed insufficient to deny the appellants the opportunity for waiver and stay. The Tribunal acknowledged the substantial value of the attached property and decided to recall the order of dismissal, restore the appeal, and grant waiver of pre-deposit and stay of recovery for duty and penalty amounts.

Issue 3: Consideration of early hearing application
The appellants mentioned an 'early hearing application' pending before the Bench, which was to be considered upon compliance report. Given the significant stake involved in the case, with a duty amount of Rs. 93 lakhs, the Tribunal granted the request for an early hearing. Following the grant of waiver and stay, the appeal was scheduled for a hearing on a specified date.

In conclusion, the Tribunal, after considering the arguments and case law presented by the appellants, decided to restore the appeal, grant waiver of pre-deposit and stay of recovery, and allow an early hearing application, ensuring that the appellants were not unduly prejudiced by the ex parte orders and attachment of property.