2012 (11) TMI 1039 - HC - Central Excise

Recall of order - ontravention of Rule 8 read with Section 4(1)(b) of the Central Excise Act, 1944 - Penalty - Held that - Petitioner has not made out a case for judicial review since we find no error in the exercise of discretion by the CESTAT warranting interference. In the facts and circumstances and after duly considering the earlier and recurrent instances of lack of diligence exhibited by the petitioner, while considering his plea to afford one more opportunity to prosecute the application for recall of the final order dated 5-4-2010 of the CESTAT, we direct that on condition of the petitioner depositing ₹ 10,000/- (Rupees Ten thousand only) to the credit of the Union of India and made over to the first respondent within a period of two weeks from the date of receipt of a copy of this order, the CESTAT shall consider afresh the application of the petitioner - Decided partly in favour of assessee

Summary

Issues: Challenge to rejection of miscellaneous application for recall of an order by CESTAT.

Analysis:
1. The petitioner, a company manufacturing steel pipes and accessories, faced allegations of contravention of Central Excise Act, 1944. The Joint Commissioner confirmed the demand for duty, penalty, and interest. The petitioner's appeal was directed to pre-deposit a sum, which was not complied with, leading to rejection of the appeal for non-compliance.

2. Subsequently, the petitioner appealed before CESTAT, which remanded the matter to the Commissioner for examination without insisting on pre-deposit. The appellate authority partly allowed the appeal by setting aside certain penalties but declined to interfere with other impositions. The petitioner filed a writ petition seeking a copy of the appellate order, which was eventually furnished after court orders.

3. The petitioner then appealed before CESTAT with a delay condonation application, which was rejected on grounds of being time-barred. Seeking recall of the final order, the petitioner filed miscellaneous applications, which were dismissed for non-prosecution.

4. The High Court found no error warranting judicial review in the CESTAT's discretion. However, considering the petitioner's plea for recall of the final order, the court directed the petitioner to deposit a sum to the credit of the Union of India within two weeks for CESTAT to reconsider the application for recall. The earlier orders were set aside subject to this condition.

5. The Writ Petition challenging the rejection of the miscellaneous application for recall was disposed of with no costs, emphasizing the need for the petitioner to comply with the directed deposit for further consideration by CESTAT.