2008 (10) TMI 547 - AT - Central Excise

Summary

Issues:
Condonation of delay in filing the appeal before the Tribunal, existence of Panorama Enterprises, diversion of consignment, pre-deposit of penalty amount.

Condonation of Delay:
The appeal was filed with a delay of 186 days due to the demise of the advocate handling the case. The applicant retrieved the appeal papers from the deceased advocate's office and submitted an affidavit in support of the delay. The Tribunal, considering previous cases and the principle of giving parties an opportunity to contest on merits, condoned the delay, following the decision of the Hon'ble High Court of Bombay. The untimely death of the advocate was not in the hands of the applicant, leading to the condonation of the delay.

Existence of Panorama Enterprises:
The applicant traded through a broker, Panorama Enterprises, which was later found to be non-existent. The license issued to them was canceled due to misrepresentation. The Excise Clerk and Managing Director of the applicant provided statements regarding the consignments, indicating discrepancies in the consignee's name and diversion of goods. The Tribunal noted the lack of evidence of consideration received from Panorama Enterprises and directed the applicant to pre-deposit Rs. 5.00 lakhs within eight weeks, with the condition of pre-deposit of the balance amounts waived subject to compliance. Non-compliance would result in the dismissal of the appeal.

Diversion of Consignment:
Statements from authorities and individuals suggested a concerted effort to divert consignments cleared under ARO. The goods were found to have been diverted to a different location than the one specified. The condition of pre-deposit of the entire penalty amount was emphasized due to the lack of evidence showing delivery to Panorama Enterprises.

In conclusion, the Tribunal condoned the delay in filing the appeal, directed the pre-deposit of a specified amount by the applicant, and highlighted discrepancies in the existence and operations of Panorama Enterprises, emphasizing the need for compliance with the pre-deposit condition to proceed with the appeal.