2017 (3) TMI 464 - HC - Central Excise

Waiver of the condition to pre-deposit - Held that - as the assessee has failed to point out any serious infirmity in the procedure adopted or order passed by the Tribunal in the pre-deposit matter, the Tribunal appears to have passed the order on the basis of material on record on a prima facie view over the fact that the assessee was engaged in paper transactions. The Tribunal thus refused to exercise its discretion and rejected the waiver application. We find no error in the approach of the Tribunal - In view of the fact that the Tribunal has subsequently dismissed the appeal, for non compliance of the order of pre-deposit, the order passed dismissing the assessee s appeal dated 14.12.2009 is set aside subject to assessee depositing the entire disputed demand of penalty as above. Upon such compliance, the Tribunal is directed to decide the appeal as expeditiously as possible - appeal disposed off.

Issues:
1. Central excise appeal against rejection of waiver of pre-deposit condition.
2. Justification for rejecting waiver application by the Tribunal.
3. Appeal against dismissal for non-compliance of pre-deposit order.
4. Opportunity to pursue appeal on merits by depositing penalty amount.
5. Directions for expeditious disposal of the appeal.

Issue 1: Central excise appeal against rejection of waiver of pre-deposit condition
The appellant filed an appeal against the Tribunal's rejection of the application for waiver of the condition to pre-deposit the disputed demand of penalty. The questions of law raised included the Tribunal's justification for not recalling the stay order, passing an ex-parte stay order, and deciding the stay cum waiver application based on the commissioner's findings. The Tribunal observed a prima facie case against the appellant and dismissed the stay application to protect the revenue's interest. The appellant argued that the order in original raised an exorbitant demand, limiting their right to appeal. The High Court, considering the circumstances, directed the appellant to deposit the entire penalty amount within a month to pursue the appeal on merits.

Issue 2: Justification for rejecting waiver application by the Tribunal
The Tribunal rejected the waiver application based on the appellant's engagement in paper transactions and the prima facie case against them. The Tribunal's decision was upheld as no serious infirmity was found in the procedure or order passed. The appellant's argument regarding the limitation of their right to appeal due to non-compliance with the waiver order was considered. The High Court allowed the appellant to deposit the penalty amount within a month to continue the appeal process, ensuring no prejudice to the revenue.

Issue 3: Appeal against dismissal for non-compliance of pre-deposit order
The appellant's appeal was dismissed by the Tribunal for non-compliance with the pre-deposit order. The High Court set aside the dismissal order, subject to the appellant depositing the entire disputed penalty amount within the specified timeframe. The Court directed the Tribunal to decide the appeal expeditiously if the appellant complied with the deposit requirement.

Issue 4: Opportunity to pursue appeal on merits by depositing penalty amount
The appellant requested an opportunity to pursue the appeal on merits by offering to deposit the penalty amount within a month. The respondent had no serious objection to this offer. The High Court accepted the appellant's request, emphasizing the need for compliance to proceed with the appeal process.

Issue 5: Directions for expeditious disposal of the appeal
The High Court directed the Tribunal to decide the appeal expeditiously, preferably within seven months from the date of communication of the order. Failure to comply with the directions would result in the appeal being dismissed. The Court ensured that the appellant's appeal would be heard on merits if the penalty amount was deposited within the specified timeframe.

In conclusion, the High Court's judgment addressed the issues of rejection of the waiver application, non-compliance with the pre-deposit order, and the opportunity for the appellant to pursue the appeal on merits by depositing the penalty amount within a specified timeframe. The Court provided clear directions for the expeditious disposal of the appeal, ensuring a fair process for both parties involved.

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