2013 (10) TMI 53 - HC - Central Excise

Terms of Pre-deposit Third Party Failure - Whether the appeal before the CESTAT u/s 35E of the Central Excise Act could have been dismissed as a consequence of third party s failure to comply with the terms of pre-deposit Held that - The Tribunal stated that subject to such compliance the present appellants applications were granted and they were not required to deposit any amount - However, the Tribunal did not visualize a situation where there was either non-payment which was directed by it or partial payment - The Tribunal at least ought to have heard the appellants and considered their individual circumstances and further ought to have entertained their applications for restoration of the appeals - This is more so in view of the fact that the original order did not cast the liability to the extent of 15 crores on the appellants either collectively or individually - The Tribunal should restore the appeals and the applications of the appellants to be decided on merits Decided in favour of Petitioner.

Summary

Issues:
Whether the appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) could have been dismissed due to a third party's failure to comply with pre-deposit terms.

Analysis:
The case involved a show-cause notice alleging clandestine removal of goods and short-payment of duties against multiple appellants and a company. The adjudicating authority confirmed demands against the company and imposed penalties on the individual appellants. All parties appealed to CESTAT seeking suspension of the order and waiver of pre-deposit. CESTAT directed the company to deposit a significant amount within a specified time, with the other appellants' requests for waiver subject to this compliance. The company failed to deposit the required sum, leading to the dismissal of its appeal and the appeals of the other appellants.

The appellants argued that CESTAT wrongly attributed the deposit default of the company to them, despite the nuanced liability distribution in the original order. They cited a Bombay High Court case to support their position. The High Court analyzed the situation, noting that CESTAT's order clearly placed the primary duty of deposit on the company for waiver qualification. The court emphasized that the appellants were not required to deposit any amount as per the initial order. However, CESTAT failed to anticipate non-payment or partial payment scenarios, leading to adverse consequences when the company did not comply. The court concluded that CESTAT should have considered the appellants' circumstances, entertained their restoration applications, and decided on merits, especially since the original order did not assign the liability of Rs. 15 crores to the appellants collectively or individually.

In light of the above, the High Court held that CESTAT should restore the appeals and consider the appellants' applications on merit. The court allowed the appeals, directing the parties to appear before the Registrar of CESTAT for further proceedings in accordance with the law.