2006 (11) TMI 126 - HC - Central Excise

Comm. (A) rejected the appeal solely on the ground that pre-deposit was not made earlier comm.. held that petitioner was eligible for benefit of abatement from duty for the period of closure of mill made pre-deposit subsequently - In view of the fact that it had complied the condition of pre-deposit, respondent is directed to dispose of the restoration application on merits - In view of the hardship pleaded held that the interest of justice would have been met if application was heard

Summary

Issues:
- Petition seeking Writ of Mandamus for restoration of appeal under Section 35F of Central Excise Act, 1944.
- Dispute regarding payment of excise duty and interest.
- Failure to fulfill pre-deposit leading to dismissal of appeal.
- Delay in disposal of restoration application.
- Admissibility of appeal after a gap of six years.
- Precedent set by Supreme Court regarding deposit for appeal.

Analysis:
1. The petitioner filed a petition seeking a Writ of Mandamus directing the Commissioner of Customs & Central Excise (Appeals) to dispose of the restoration application for an appeal under Section 35F of the Central Excise Act, 1944. The petitioner, engaged in manufacturing M.S. Rods and CTD bars, availed a scheme for payment of excise duty but faced financial distress. The Deputy Commissioner held the petitioner liable for duty and interest, leading to an appeal before the 1st respondent. Due to the inability to fulfill pre-deposit, the appeal was dismissed, and a restoration application was filed but not disposed of promptly.

2. The respondents admitted the proceedings against the petitioner but contested the liability for duty payment. They argued that the appeal was time-barred after six years. However, the court considered the precedent set by the Supreme Court in a similar case where the entire required deposit was made for appeal, leading to the dismissal order being set aside. The court noted that the petitioner had complied with the pre-deposit condition and directed the 1st respondent to hear the application for restoration on merits.

3. The court observed that the 1st respondent had earlier allowed the appeal, stating the petitioner was eligible for abatement from duty payment during the mill closure period. Despite this, the appeal was rejected solely due to non-fulfillment of pre-deposit. Considering the compliance with pre-deposit conditions and the hardship faced by the petitioner, the court held that justice required the restoration application to be considered. Consequently, the court allowed the Writ Petition, directing the 1st respondent to dispose of the restoration application on merits, without imposing any costs.