2015 (10) TMI 1811 - AT - Central Excise

Waiver of pre deposit - Mandatory pre deposit - Held that - Appellant company filed appeal alongwith the stay application against the impugned order, which is unsigned by the appellant company. The Registry of the Tribunal issued the defect notice directing the appellant company to remove the defects and no step was taken by them. Apart from that, as per amended provisions of Section 35F of Central Excise Act 1944, the Tribunal may entertain the appeal subject to deposit of 10% of duty or penalty. - Tribunal shall not entertain any appeal unless the appellant has deposited 10% of the duty, in case by duty or duty and penalty are in dispute, or penalty or such penalty is in dispute on decision or appeal against. It is noted that as per the defect notice of the registry, the appellant failed to produce the proof of mandatory deposit in terms of Section 35F of the Central Excise Act 1944 as amended. So, Tribunal cannot entertain the appeal. The appeal is dismissed as not maintainable - Decided against assessee.

Summary

Issues:
1. Failure to appear on behalf of the appellant during the hearing.
2. Defects noted in the appeal including lack of signature, absence of certified copy, and failure to submit proof of mandatory deposit.
3. Appellant company in liquidation under the Companies Act 1956.
4. Applicability of Section 35F of the Central Excise Act 1944 regarding mandatory deposit for entertaining appeals.
5. Dismissal of the appeal and disposal of the stay application due to non-compliance with mandatory deposit requirements.
6. Direction to the Commissioner of Central Excise and Service Tax, Daman, to claim the dues through Form No 66 with the Official Liquidator.

Analysis:
1. The appellant failed to appear during the hearing despite multiple notices and reminders issued by the Tribunal. The record indicated that the appellant company was in liquidation under the Companies Act 1956, with the Official Liquidator appointed by the Hon'ble Bombay High Court. The absence of representation raised concerns regarding the proceedings.

2. Various defects were identified in the appeal, including the lack of signature in the Stay Application, absence of a certified copy supporting the appeal, and failure to provide proof of mandatory deposit as required by Section 35F of the Central Excise Act 1944. The appellant company was directed to rectify these defects, but no action was taken.

3. The amended provisions of Section 35F of the Central Excise Act 1944 mandated a mandatory deposit of 10% of the duty or penalty for the Tribunal to entertain an appeal. The appellant's failure to comply with this requirement rendered the appeal non-maintainable. Consequently, the appeal was dismissed, and the stay application was disposed of due to non-compliance with the mandatory deposit provisions.

4. In light of the appellant company being in liquidation, the Asstt Official Liquidator from the Hon'ble Bombay High Court requested the filing of claims in Form No 66 with the Official Liquidator for the present dues. The Commissioner of Central Excise and Service Tax, Daman, was directed to take necessary steps to claim the dues, and the Ld Authorised Representative was instructed to facilitate the forwarding of the order to the concerned Commissioner for further action.

In conclusion, the judgment highlighted the importance of compliance with procedural requirements, especially regarding mandatory deposits, and emphasized the need for timely and appropriate representation in legal proceedings.