2015 (12) TMI 1210 - HC - Central Excise

Waiver of pre deposit - Appeal dismissed for non compliance - Clandestine removal of goods - Held that - Once the conditional order of stay has attained finality, the dismissal of the appeal for non-compliance with the pre-deposit condition cannot be independently challenged. A period of more than eight years has also passed. Therefore, the writ petition challenging the dismissal of the appeal by CESTAT for failure to comply with the pre-deposit condition, cannot be sustained. - The order of the Tribunal shows that the appellant had admitted, at least in respect of one month, the clandestine removal of goods. - Decided against assessee.

Summary

Issues: Maintainability of writ petition challenging dismissal of appeal for non-compliance with pre-deposit condition; Application of amendment for pre-deposit in appeal to CESTAT.

Analysis:

1. Maintainability of Writ Petition: The High Court addressed the issue of the maintainability of the writ petition challenging the dismissal of the appeal by CESTAT due to non-compliance with the pre-deposit condition. The Court noted that the original stay order directing the pre-deposit was not challenged, leading to the finality of the pre-deposit order. It was emphasized that once the conditional stay order has attained finality, the appeal's dismissal for non-compliance cannot be independently challenged. The Court highlighted that a significant period had passed, further diminishing the grounds for challenging the dismissal. Consequently, the Court dismissed the writ petition, along with the connected miscellaneous petition, without imposing any costs.

2. Application of Amendment for Pre-Deposit: The High Court also delved into the issue of the application of an amendment for pre-deposit in the appeal to CESTAT. The appellant contended that the Tribunal should not have applied the amendment dated 6.8.2014, arguing against the demand based on presumed production derived from electricity consumption. The appellant insisted on absolute waiver, citing various legal precedents. However, the Court disagreed with the appellant's stance. The Tribunal's order revealed that the appellant had admitted to clandestine removal of goods for a specific month, supported by substantial electricity consumption and related payments. In light of this admission, the Court found the direction to make a pre-condition of 10% of the total demand reasonable and not arbitrary. Consequently, the civil miscellaneous appeal was also dismissed, with no costs imposed, and the connected miscellaneous petition was dismissed as well.