2015 (9) TMI 625 - HC - Central Excise

Restoration of appeal - Appeal dismissed for non compliance with pre deposit order - Held that - If an application had been filed on 22-8-2014 for rectification/modification of the order dated 11-7-2014 before the last date fixed for compliance by pre-deposit on 15-9-2014, we are of the view that the application was required to be considered and disposed in accordance with law. The order states that the application was not on record. If the Office of the Tribunal did not place it on record, the Appellant cannot be faulted with. - order in its present form with regard to the present Appellant is not sustainable. The order dated 15-9-2014 is set aside and the matter is remanded to the Tribunal to dispose of the Appellant s application for rectification/modification dated 22-8-2014 at the earliest. - Decided in favour of assessee.

Summary

Issues:
Appeal against order of Customs, Excise and Service Tax Appellate Tribunal for non-compliance with pre-deposit under Section 35F of the Central Excise Act, 1944.

Analysis:
The appellant filed an appeal against the order of the Tribunal dated 15-9-2014, which dismissed the appeal due to failure to make a pre-deposit and report compliance as per the order dated 11-7-2014 under Section 35F of the Act. The appellant argued that they had filed an application for rectification/modification of the order on 22-8-2014, but the Tribunal did not place it on record, leading to the dismissal of the appeal. The appellant contended that the application should have been decided before the last date for deposit, and the appeal could not have been dismissed without disposing of the application. The respondent opposed the appeal, stating that the order for pre-deposit was passed after considering all grounds and that filing an application for rectification/modification was not justified as it sought a review without statutory provision. The Court noted that if an application was filed before the last date for compliance, it should have been considered and disposed of in accordance with the law. Since the Tribunal did not place the application on record, the appellant was not at fault. Therefore, the Court set aside the order dated 15-9-2014 and remanded the matter to the Tribunal to dispose of the appellant's application promptly. The appellant was directed to submit a copy of the order to the Tribunal within three weeks; otherwise, the Tribunal would not be obligated to hear the application, and the appeal would stand dismissed. The Court clarified that the order was passed for procedural reasons and did not favor either party, leaving the Tribunal's discretion regarding the application unhindered. Ultimately, the appeal was allowed.