2015 (12) TMI 934 - AT - Central Excise

Rectification of mistake - Appeal dismissed for no pre deposit - Section 35F - Held that - Three years later, on 15.1.2014, the appellant has filed this ROA application claiming that it had no knowledge of a requirement of pre-deposit or of the order dated 1.8.2011 and stating to have complied with pre-deposit requirement on coming to know of the dismissal of its stay application. Copy of challans are filed. These show a deposit of ₹ 2,68,964/- . There is however no deposit of the interest and penalty components as assessed by the adjudication order dated 18.1.2010 and confirmed by the Appellate Commissioner dated 13.8.2010 while dismissing the appeal by the appellants herein - since an incorrect assertion is made in the ROA application of having pre-deposited in terms of Section 35F - Rectification denied.

Summary

Issues:
1. Dismissal of stay application for non-prosecution
2. Dismissal of appeal for non-compliance of pre-deposit
3. ROA application filed three years later claiming lack of knowledge of pre-deposit requirement
4. Incorrect assertion in the ROA application regarding pre-deposit

Issue 1: Dismissal of stay application for non-prosecution

The appellant was served notice of hearing for the stay application but failed to appear, leading to the dismissal of the stay application on 1.8.2011. Consequently, the appellant was directed to pre-deposit the assessed liability within eight weeks and report compliance by 17.10.2011.

Issue 2: Dismissal of appeal for non-compliance of pre-deposit

On 17.10.2011, the appeal was dismissed due to the appellant's failure to comply with the pre-deposit requirement mandated under Section 35F of the Central Excise Act, 1944. The appellant did not fulfill the pre-deposit obligation, resulting in the dismissal of the appeal.

Issue 3: ROA application filed three years later claiming lack of knowledge of pre-deposit requirement

Three years after the dismissal of the appeal, the appellant filed a Review of Application (ROA) claiming ignorance of the pre-deposit requirement and the previous order. The appellant asserted compliance with the pre-deposit only upon learning of the dismissal of the stay application, providing challans showing a deposit of &8377; 2,68,964. However, the interest and penalty components were not deposited as per the adjudication order.

Issue 4: Incorrect assertion in the ROA application regarding pre-deposit

The ROA application contained an incorrect assertion of having pre-deposited in accordance with Section 35F, which was not entirely accurate. Due to this incorrect claim and the failure to fulfill the pre-deposit requirement, the ROA application was dismissed.

In conclusion, the judgment highlighted the importance of complying with pre-deposit requirements in legal proceedings and the consequences of non-compliance, leading to the dismissal of applications and appeals. The appellant's lack of representation, failure to adhere to pre-deposit obligations, and subsequent incorrect assertions in the ROA application resulted in the dismissal of their claims.