2012 (8) TMI 292 - HC - Central Excise

Dismissal of appeal on account of non-deposit of - Held that - As during the period in question, the petitioner sold scrap involving duty to M/s VAL - the appeal filed by the petitioner cannot be dismissed for want of pre-deposit by M/s VAL Ltd - as once the Tribunal had waived the condition of pre-deposit of penalty in the case of the petitioner the Tribunal was not justified in passing order on miscellaneous application directing the petitioner to deposit the penalty amount imposed on them by reviewing its earlier order.

Summary

Issues:
- Challenge to stay order dated 9.2.2012 passed by the Customs, Excise and Service Tax Tribunal
- Review of order directing petitioner to deposit penalty amount imposed
- Justification of Tribunal's orders

Analysis:
1. The judgment pertains to two identical cases, with the facts taken from one of the cases. The petitioner challenged a stay order dated 9.2.2012 passed by the Customs, Excise and Service Tax Tribunal, New Delhi, which directed automatic dismissal of the appeal for non-deposit of a specified amount by M/s Vishwakarma Alloys Ltd. The petitioner was directed to deposit the penalty amount imposed by the Commissioner. The petitioner contended that the Tribunal's subsequent order directing deposit of penalty was not justified.

2. The relevant facts involved the levy of duty under Section 3 of the Central Excise Act, 1944. The petitioner was a registered dealer during the period in question and sold scrap to M/s VAL. Subsequently, a show cause notice was issued, leading to the imposition of a penalty equal to the credit passed to M/s VAL. Appeals were filed before the Tribunal, with stay applications. The Tribunal ordered M/s VAL to make a pre-deposit, failing which all appeals would be dismissed. The Tribunal later directed the petitioner and others to deposit the penalty amount.

3. The petitioner argued that a similar order had been modified by the Court in another case, holding that the appeal cannot be dismissed for want of pre-deposit by M/s VAL. It was contended that the Tribunal was not justified in directing the petitioner to deposit the penalty amount after waiving the pre-deposit condition. The Court, after considering the submissions, found the order requiring the petitioner to deposit the penalty amount unjustified.

4. Referring to a previous case, the Court emphasized that once the Tribunal waived the pre-deposit condition for the petitioner, the appeal could not be automatically dismissed for non-deposit by M/s VAL. The Court noted that the Tribunal's review of its earlier order lacked reasons for the change in stance. Consequently, the Court set aside the order directing deposit of penalty and modified the stay order to uphold the waiver of pre-deposit for the petitioner, allowing the appeal to be heard on merits without insisting on pre-deposit.

5. Ultimately, the Court allowed the petitions to the extent indicated above, providing relief to the petitioner by modifying the Tribunal's orders and upholding the waiver of pre-deposit, ensuring the appeal would be heard on merits without the requirement of immediate deposit.