2017 (7) TMI 243 - HC - Central Excise

Non compliance of provisions of Section 35F of the CEA, 1944 - Held that - right of appeal is a statutory right. Considering the reasons given, we deem it appropriate to grant one more opportunity to the Appellant to contest the matter on merits and more particularly as he has also shown his bona fide by agreeing to deposit 25% of the amount of duty - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
1. Non-compliance with CESTAT order for depositing dues within four weeks.
2. Dismissal of appeal and miscellaneous application for non-prosecution and non-compliance with Section 35F of the Central Excise Act, 1944.
3. Appellant's submission of inability to appear before CESTAT due to reasons beyond control.
4. Appellant's request for an opportunity to contest the matter on merits and willingness to deposit 25% of duty.
5. Respondent's argument of appellant protracting the matter and disobeying CESTAT's order.
6. Court's consideration of submissions and decision to grant another opportunity to appellant.

Analysis:

1. The appellant failed to comply with the CESTAT order dated 16th April, 2012, directing the deposit of dues within four weeks. Subsequently, the appellant's Miscellaneous Application for restoration was dismissed for non-prosecution, leading to the dismissal of the appeal on 18th June, 2012, for non-compliance with Section 35F of the Central Excise Act, 1944, all on the same date.

2. The appellant's counsel argued that the appellant's representative's absence before CESTAT was unintentional and due to reasons beyond control. To demonstrate good faith, the appellant offered to deposit 25% of the duty and requested an opportunity to contest the matter on merits before CESTAT.

3. The respondent contended that the appellant was prolonging the case and had disobeyed CESTAT's order without providing a valid reason for non-compliance. The respondent supported CESTAT's decision to dismiss the appeal.

4. After considering the arguments from both parties, the court found that the appellant's representative's absence did not seem intentional and decided to grant another opportunity to contest the matter on merits. The court acknowledged the appellant's willingness to deposit 25% of the duty as a show of good faith.

5. Consequently, the court quashed and set aside the order dismissing the Miscellaneous Application and the appeal, restoring them to their original position with the condition that the appellant deposits 25% of the duty within four weeks. The court emphasized that the deposit was a prerequisite for further consideration of the Miscellaneous Application by CESTAT.

6. Ultimately, the court allowed the appeal, considering the appellant's reasons and willingness to comply with the deposit condition, ensuring the appellant's statutory right to appeal was upheld.