2007 (8) TMI 299 - HC - Service Tax

Writ petition questioning Tribunal s Order refusing restoration of its appeal which had been dismissed earlier because of petitioner s non-appearance, and non-deposit of the duties and penalties petitioner s conduct is not bona fide statutory requirement of pre-deposit not made no case in favour of the petitioner company merely on the ground that the duties and penalties stood paid after a period of four years petition is dismissed

Summary

Issues:
1. Restoration of appeal dismissed by Customs, Excise & Gold (Control) Appellate Tribunal.
2. Negligence of counsel leading to non-compliance with deposit requirements.
3. Allegations of evasion of Central Excise Duty and penalties.
4. Failure to comply with orders leading to dismissal of appeals.
5. Maintainability of writ petition and jurisdiction of High Court.

Issue 1: Restoration of appeal dismissed by Tribunal
The writ petition was filed questioning the Tribunal's Order refusing restoration of the appeal dismissed due to non-appearance, failure to seek waiver of deposit, and non-deposit of duties and penalties. The petitioner claimed negligence by its counsel for not filing the required application seeking waiver of the deposit.

Issue 2: Negligence of counsel and non-compliance with deposit requirements
The petitioner argued that its counsel's negligence led to non-compliance with the Commissioner's order to deposit duties and penalties, resulting in the dismissal of the appeal. The petitioner also cited health reasons for the Director's inability to pursue the appeal.

Issue 3: Allegations of evasion of Central Excise Duty and penalties
The respondents alleged that the petitioner evaded Central Excise Duty by manufacturing and clearing Zinc Slabs clandestinely without payment. The Deputy Commissioner's order imposed penalties and duties on the petitioner for contraventions of the Central Excise Rules.

Issue 4: Failure to comply with orders leading to dismissal of appeals
The Commissioner dismissed the appeal due to non-compliance with deposit requirements. Subsequently, the Tribunal dismissed the appeal for non-appearance and non-deposit of the required amount. Restoration applications were also rejected by the Tribunal.

Issue 5: Maintainability of writ petition and jurisdiction of High Court
The respondents argued against the maintainability of the writ petition, stating that the petitioner should have appealed to the Supreme Court or sought a reference to the High Court under the Central Excise Act. The High Court held that the petitioner's conduct did not warrant fresh adjudication of appeals and dismissed the petition, citing lack of jurisdiction under Article 226.

In conclusion, the High Court dismissed the writ petition, emphasizing that payment of duties and penalties after a significant delay did not entitle the petitioner to seek re-adjudication of appeals. The Court highlighted that writ jurisdiction could not be invoked when statutory remedies were available, and the petitioner had not sought reference to the High Court as per the Central Excise Act.