2009 (6) TMI 222 - HC - Central Excise

These writ petitions were moved challenging the orders passed by Tribunal dismissing the appeals for non-compliance of the orders passed by it directing predeposit (i) whether the Appellate Tribunal was justified in passing orders dismissing the appeals for non-compliance of its directions directing deposit of an amount by the appellants under Section 35F of the Central Excise Act after the insertion of 35C (2A); (ii) whether an appeal can be dismissed for non-compliance of the order directing predeposit on the day when it is posted for compliance? (iii) whether the Appellate Tribunal was justified in dismissing the appeals during the pendency of the writ petitions challenging the order of predeposit passed by the Appellate Tribunal? and (iv) whether before passing the impugned orders directing predeposit, the Appellate Tribunal had formed its opinion as stipulated in Section 35F? - even in case of non-compliance with pre-deposit, appeal to be decided on merits, as far as possible, within three years from date of filing tribunal s order dismissing appeal on day of compliance is contrary to Rule 41 of CESTAT (Procedure) Rules, 1982 and it is illegal - tribunal was having knowledge about filing of petition so it was unjust to pass orders dismissing appeal appeal is conditional right right of appeal not automatic appeal maintainable when substantial question of law involved no constitution fetter in invoking extraordinary jurisdiction even when alternative remedy exits - Merely stating in the order that order is being passed after hearing the both sides, after perusing the records and the learned members were satisfied and that the main appellants do not have a prima facie case for waiver of predeposit, are not sufficient to justify an order. In my view, there should have been deliberation and formation of opinion which should be evident from the order. Since those are absent, the order impugned cannot be sustained. petition is allowed

Issues Involved:
1. Justification of dismissing appeals for non-compliance with predeposit orders.
2. Legality of dismissing appeals on the day of compliance.
3. Dismissal of appeals during the pendency of writ petitions.
4. Formation of 'opinion' by the Appellate Tribunal under Section 35F.

Issue-wise Detailed Analysis:

1. Justification of dismissing appeals for non-compliance with predeposit orders:
The court examined Section 35F of the Central Excise Act and Section 129E of the Customs Act, which provide a conditional right of appeal subject to predeposit of duty or penalty. It referenced the Supreme Court's judgment in Vijay Prakash D. Mehta v. Collector of Customs, which upheld the Appellate Tribunal's competence to reject appeals for non-compliance with predeposit orders. However, the court noted the insertion of Section 35C(2A) to the Central Excise Act, which mandates the Appellate Tribunal to hear and decide appeals within three years, thus implying that appeals should be decided on merits rather than dismissed for non-compliance with predeposit orders. This interpretation harmonizes Section 35C(2A) with Section 35F, suggesting that the Appellate Tribunal's dismissal of appeals for non-compliance was unjustified.

2. Legality of dismissing appeals on the day of compliance:
The court referred to Rules 18, 19, 20, 28A, and 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. Rule 20 allows the Tribunal to dismiss an appeal for default if the appellant does not appear on the hearing date, but it also provides for deciding the appeal on merits. Rule 28A outlines the procedure for filing stay petitions, and Rule 41 empowers the Tribunal to pass orders to prevent abuse of its process. The court found that dismissing appeals on the compliance date for non-compliance with predeposit orders was contrary to these rules and violated Article 14 of the Constitution of India, making such dismissals illegal.

3. Dismissal of appeals during the pendency of writ petitions:
The court observed that the Appellate Tribunal dismissed appeals despite being notified of pending writ petitions challenging its predeposit orders. It cited the judgment in Dr. Haripada Poddar v. S.R. Das, which held that proceeding with a matter during the pendency of a related writ petition amounts to contempt of court. The court concluded that the Tribunal's actions were improper, unjust, and interfered with the due course of justice, as it dismissed the appeals while writ petitions were pending.

4. Formation of 'opinion' by the Appellate Tribunal under Section 35F:
The court emphasized that the Appellate Tribunal must form an 'opinion' based on relevant materials, honestly, bona fide, and objectively, as stipulated in the proviso to Section 35F. It found that the Tribunal's orders lacked consideration of relevant materials and failed to form a bona fide 'opinion.' Consequently, the Tribunal's exercise of jurisdiction was improper.

Individual Cases:

W.P. No. 1161 of 2008 (Indrajit Jash v. Union of India and others):
The petitioner argued that no show cause notice was issued in his individual capacity, violating Article 14 of the Constitution. The court found that the Tribunal's order did not discuss this issue and was based on a disputed concession by the petitioner's advocate. The Tribunal was directed to reconsider the matter afresh.

W.P. No. 1016 of 2008 (M/s. Shree Gobinddeo Glass Works Ltd. v. Union of India and others):
The petitioner, a company registered with the BIFR, argued that the Tribunal ignored its financial hardship. The court found the Tribunal's order discriminatory and violative of Article 14, as it dismissed the appeal on the compliance date while other appeals were listed for hearing. The Tribunal's order was set aside.

W.P. 2248(W) of 2008 (M/s. Shree Krishna Ltd. and another v. Union of India and others):
The petitioner challenged the Tribunal's orders for not considering financial hardship and exceeding jurisdiction by a single member. The court found the Tribunal's orders unsustainable due to lack of deliberation on financial aspects and jurisdictional violations.

W.P. No. 230 of 2008 (M/s. Shaman Ispat Ltd. and another v. Union of India and others):
The petitioner argued that the Tribunal did not consider its stay petition and miscellaneous application on merit. The court found the Tribunal's orders cryptic and without reasons, thus unsustainable.

W.P. No. 261 of 2008 (M/s. Promising Exports Ltd. and another v. Union of India and others):
The petitioner argued that the Tribunal did not consider its stay application and the customs authorities had certified the exports. The court found the Tribunal's order lacked deliberation and formation of opinion, making it unsustainable.

W.P. No. 4006(W) of 2008 (Suresh Goyel and Sons v. Union of India and others):
The petitioner argued that the Tribunal did not consider additional evidence. The court found the Tribunal's order lacked consideration of additional evidence and formation of opinion, making it unsustainable.

Conclusion:
The court set aside the impugned orders, allowed the writ petitions, and directed the Appellate Tribunal to restore the appeals and hear them expeditiously. The court also refused the respondents' prayer for a stay of the judgment's operation.

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