2013 (12) TMI 1239 - HC - Central Excise

Liability to pre-deposit the duty u/s 35F of the Central Excise Act, 1944 Held that - A plain reading of the provision shows that pre-deposit is not mandatory in all appeals filed under Section 35B of the Act, but in certain appeals specified therein pre-deposit is not required at all - the order dated 30.11.2011 itself shows that the writ petitioner was not heard before passing the order - the matter had already undergone several adjournments at the instance of the petitioner and there was no representation on behalf of the petitioner despite notice - the Tribunal could not be found fault with in proceeding with the matter in the absence of the petitioner, the Tribunal is bound to pass an order on merits assigning the reasons for its conclusion - the CESTAT directed the assessee to pre-deposit 50% of the duty demanded is absolutely without any reasons. The Tribunal did not go into the petitioner s plea of financial hardship, particularly the plea that the petitioner company has been referred to BIFR Thus, the CESTAT is not justified in concluding that the petitioner failed to comply with the condition of pre-deposit of 50% of the duty demanded - the petitioner deserves to be provided an opportunity to renew its request for waiver of pre-deposit Decided in favour of Petitioner.

Issues:
1. Appeal against order of Commissioner of Customs and Central Excise.
2. Application for waiver of pre-deposit of duty and penalty.
3. Compliance with Section 35F of the Central Excise Act, 1944.
4. Communication of orders by CESTAT.
5. Allegations of arbitrariness and violation of natural justice.
6. Contention of undue hardship and financial hardship.
7. Exercise of discretion by the Appellate Tribunal.
8. Justification of dismissal of petitioner's appeal by CESTAT.
9. Interpretation of Section 35F of the Act.
10. Consideration of financial hardship and plea for waiver of pre-deposit.
11. Review of orders passed by CESTAT.

Analysis:
The judgment by the High Court of Andhra Pradesh involves a case where the petitioner company challenged the orders of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) regarding the liability to pay duty and penalty. The petitioner appealed against the Commissioner's order, seeking waiver of pre-deposit of duty and penalty. The CESTAT initially remanded the matter for a fresh enquiry, leading to subsequent appeals by the petitioner. The CESTAT directed the petitioner to pre-deposit 50% of the duty demanded, failing which the appeal was dismissed. The petitioner alleged that the orders were arbitrary and illegal, emphasizing lack of communication and violation of natural justice.

The main issue revolved around the requirement of pre-deposit under Section 35F of the Central Excise Act, 1944. The High Court analyzed the provision, highlighting that pre-deposit is not mandatory in all appeals and can be dispensed with by the Tribunal in cases of undue hardship to the appellant. The Court emphasized the need for judicious exercise of discretion by the Tribunal, ensuring a fair opportunity for the appellant to present their case.

The Court found that the orders of the CESTAT lacked proper reasoning and consideration of the petitioner's financial hardship plea. The initial order directing pre-deposit was deemed arbitrary as it did not address the petitioner's circumstances adequately. The subsequent order dismissing the appeal failed to reflect a reasoned decision, further underscoring the violation of natural justice.

Moreover, the Court noted the petitioner's contention regarding the delayed communication of the CESTAT's orders, which remained uncontroverted. This factor played a crucial role in the Court's decision to set aside the CESTAT's order and provide the petitioner with an opportunity to renew their request for waiver of pre-deposit. The Court directed the CESTAT to reconsider the petitioner's application, ensuring a fair hearing and reasoned decision-making process.

In conclusion, the High Court disposed of the writ petition, setting aside the CESTAT's order and instructing a review of the petitioner's plea for waiver. The Court emphasized the importance of procedural fairness and the need for reasoned decisions in matters of pre-deposit and appeal dismissal, highlighting the significance of natural justice principles in administrative proceedings.

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