2015 (12) TMI 1208 - HC - Central Excise

Waiver of pre deposit - Section 35F - Held that - One after the other three successive writ petitions were preferred by petitioner before the High Court of Delhi assailing the orders passed by the CESTAT and this fact cannot be ruled out that petitioner-company remained sick for a long time and became viable and started commercial production in February, 2015 and so also the fact that right of appeal which has been provided under the statute, ordinarily is not to be frustrated and in the present facts & circumstances, if the petitioner is not permitted to deposit, as prayed for by him in terms of order passed by the ld.Tribunal dt.27.04.2006, he will remain remediless and taking note of the long litigation, we are of the view that the petitioner deserves indulgence to be afforded an opportunity to comply with the order of pre-deposit passed by the CESTAT dt.27.04.2006 on his application filed u/Sec.35-F of the Act within a period of thirty days from today, the appeal which was filed before the CESTAT deserves to be restored and heard on merits. - petition is disposed of with the direction that if the petitioner now complies with the condition of pre-deposit in terms of the order of CESTAT dt.27.04.2006 on his application filed u/Sec.35F of the Act, be restored and the same be heard on merits. - Decided in favor of assessee.

Summary

Issues:
Challenge to order of CESTAT for non-compliance of pre-deposit condition.

Analysis:
The petitioner, a company producing Caustic Soda, faced financial hardship leading to non-compliance with the order of the Customs Excise & Service Tax Appellate Tribunal (CESTAT) dated 27.04.2006, requiring a pre-deposit of duty and penalty. The company's appeal before CESTAT was dismissed due to this non-compliance. Subsequently, multiple writ petitions were filed challenging various orders and decisions. The petitioner argued that the right of appeal is a statutory right not dependent on pre-deposit compliance, citing relevant case law. The respondent contended that ample opportunities were given, and non-compliance left CESTAT no choice but to reject the appeal and dismiss the restoration application.

The High Court considered the history of the case, including the company's financial struggles, its viability in recent times, and the statutory right of appeal. Acknowledging the prolonged litigation and the importance of not frustrating the appeal process, the Court granted the petitioner an opportunity to comply with the pre-deposit order within thirty days. If the petitioner complies by the specified date, the appeal before CESTAT, previously dismissed, will be restored and heard on merits. This decision aimed to provide the petitioner with a chance to address the non-compliance issue and have their appeal considered on its merits, ensuring a fair opportunity for the company to present its case.