2012 (5) TMI 452 - AT - Central Excise

Application for restoration of appeal - the demand and recovery of excise duty against Main party and also penalty on various other parties including applicant (transporter) Held that - Hon ble High Court vide order directed Main party to deposit ₹ 15 crores in eight equal installments and in the event of such deposit pre-deposit of the penalties imposed on other appellants shall stand waived - the main appellant has failed to comply with the order - since the petitioner has failed to comply with the order of deposit, his appeal has been rightly dismissed for contravention of Section 35F of the Central Excise Actand there is no merit in the request of the restoration of the appeal - against assessee.

Summary

Issues:
1. Restoration of appeal dismissed due to non-compliance of Section 35F of the Central Excise Act, 1944.

Analysis:
The judgment revolves around an application for the restoration of an appeal dismissed for non-compliance with Section 35F of the Central Excise Act, 1944. The main party, M/s Sunrise Food Products, had a demand and recovery of excise duty confirmed against them, along with penalties imposed on various parties, including the applicant, M/s Moongipa Roadways Pvt. Ltd. The Tribunal had directed M/s Sunrise Food Products to deposit Rs.15 crores within twelve weeks, with the condition that in case of compliance, pre-deposit of penalties on other appellants would be waived. However, the main appellant failed to comply, leading to the dismissal of all appeals, including that of the present petitioner, for non-compliance with the Tribunal's order.

The counsel for the appellants argued that the failure of the main appellant to comply should not deprive the applicant of the right to challenge the order-in-appeal. They sought restoration of the appeal and stay application. On the contrary, the respondent opposed the application, stating that since the main appellant did not fulfill the deposit condition, the appellant should have deposited the penalty as a prerequisite for hearing the appeal, which was not done. The Tribunal examined the stay order, emphasizing that the pre-deposit of the penalty on the appellant was waived only if the main appellant deposited Rs.15 crores. As the main appellant failed to comply with the deposit condition, the appeal of the petitioner was rightly dismissed under Section 35F of the Central Excise Act, 1944, and the request for restoration was found to lack merit.

In conclusion, the appeal for restoration was dismissed based on the failure to comply with the deposit condition as per the Tribunal's order, leading to the dismissal of the appeal under Section 35F of the Central Excise Act, 1944.