2009 (9) TMI 64 - HC - Central Excise

Stay petition - tribunal rejected the appeal for failure to deposoit the amount - held that - One additional fact in this case is that appeal was dismissed when the matter was pending before this court by the Tribunal even when its attention was brought to the fact inspite of that the appeal was dismissed. We are aware that it is open to the Tribunal to dismiss an appeal for non compliance. We are also aware of the fact that it is open to the Tribunal in the absence of pre-deposit by the stipulated date to dismiss the appeal. However, when a party brings to the notice of the Tribunal that an appeal is preferred and is pending judicial exercise to avoid multiplicity of proceedings, would be to grant reasonable time to enable the petitioner to produce an order from this court, and on failure to do so proceed with the matter. Ultimately, the Tribunal is subject to the supervisory jurisdiction of this court. - stay granted - appeal to CESTAT restored.

Summary

Issues:
1. Tribunal's order directing the appellant to deposit the entire amount of duty.
2. Comparison of the case with M/s. Ambika Waste Management Pvt. Ltd.
3. Tribunal's conclusion regarding the difference in the cases.
4. Orders passed in the case of M/s. Ambika Waste Management Pvt. Ltd.
5. Petitioner's strong prima facie case and undue hardship.
6. Dismissal of the appeal by the Tribunal despite bringing attention to the pending appeal.
7. Setting aside the order of dismissal of the appeal and varying the pre-deposit amount.

Analysis:
The High Court dealt with a case where the petitioners were aggrieved by the Tribunal's order directing them to deposit the entire duty amount. The Tribunal had considered the case of M/s. Ambika Waste Management Pvt. Ltd., where a different deposit amount was specified. The Court examined various orders related to M/s. Ambika Waste Management, highlighting the differences in the cases. The Tribunal concluded that the cases were distinct, leading to the impugned order.

Upon review, the Court found that the petitioner's case was similar to M/s. Ambika Waste Management and that the petitioner had already deposited a significant amount. The Court noted that treating the petitioners differently would result in undue hardship, emphasizing the strong prima facie case made by the petitioners. Additionally, the Court criticized the Tribunal for dismissing the appeal despite being informed of its pendency.

In light of the above, the Court set aside the order of appeal dismissal and modified the pre-deposit requirement to consider the amount already deposited. The Tribunal was directed to proceed with the appeal on merits, acknowledging its accountability to the supervisory jurisdiction of the Court. Ultimately, the Court made the rule absolute without any order as to costs.