2009 (10) TMI 271 - HC - Central Excise

Non-deposit, pre-deposit- the petitioner-company preferred appeal before the Commissioner (Appeals), Central Excise, Chandigarh. The appeal was accompanied by an application seeking waiver of pre-deposit required in terms of Section 35-F of Central Excise Act, 1944. That application was partly allowed by the Commissioner (Appeals) by an order directing the petitioner-company to deposit 50% of the amount of duty as also the penalty as a condition precedent for hearing the appeal on merits. Aggrieved by the said order, the petitioner-company filed a Writ Petition No. 10646 of 2009 in this Court which was allowed by this Court by an order dated 30-7-2009, with a direction to the Commissioner (Appeals) to reconsider the matter in the light of the fresh material which became available to the petitioner-company after the passing of the earlier order. Commissioner(Appeals) submits that the appeal has already been dismissed before passing of court order. Held that- We say so on a parity of reasoning that since the order of dismissal was entirely based on the failure of the petitioner to make the pre-deposit which was found by us to be unsustainable, there was no reason why the order of dismissal should not be quashed. We accordingly allow this writ petition, quash order passed by the Commissioner (Appeals) and direct that request of the petitioner for waiver of pre-deposit be considered afresh in the light of the earlier order passed by us on 30-7-2009. Consequently, CM No. 15157 of 2009 filed by the Commissioner (Appeals) seeking recall of our order dated 30-7-2009 fails and is hereby dismissed. Parties are left to bear their own costs.

Summary

Issues:
1. Appeal against order of adjudication and waiver of pre-deposit.
2. Dismissal of appeal due to non-compliance with pre-deposit orders.
3. Commissioner's inability to recall dismissal order post fresh material.
4. Legal challenge to dismissal order and reconsideration of appeal.

Analysis:
1. The petitioner-company appealed against an order of adjudication and sought waiver of pre-deposit under Section 35-F of the Central Excise Act, 1944. The Commissioner (Appeals) partially allowed the waiver, directing a 50% deposit for hearing the appeal. Subsequently, a writ petition was filed, leading to a direction for reconsideration based on new evidence.

2. The appeal was dismissed for non-compliance with pre-deposit orders, despite the direction for reconsideration by the High Court. The Commissioner (Appeals) contended that the dismissal couldn't be legally recalled post the court's order, leading to a civil application for the same.

3. The Commissioner's stance on recalling the dismissal order was challenged by the petitioner-company, arguing that the Commissioner should have reconsidered the matter instead of seeking a recall. The High Court found merit in this argument, emphasizing that the Commissioner should have quashed the dismissal order post the court's direction for fresh examination.

4. Ultimately, the High Court allowed the writ petition, quashed the dismissal order, and directed a fresh consideration of the waiver request in line with their previous order. The Commissioner's application for recalling the court's order was dismissed, with each party bearing their own costs. The judgment highlighted the importance of following court directions and ensuring fair reconsideration of legal matters.