2018 (7) TMI 907 - AT - Central Excise

Rectification of Mistake - appellant states that only reason for non-appearance before this Tribunal on 26th March; 2018 was that they did not receive the notice of hearing. There is no deliberate latches on their part in pursuing their appeal. Accordingly, learned Counsel prayed for modification of the final order/said order dated 28th November 2014. Held that - The appellant have already made the pre-deposit of ₹ 7.50 lakhs on 3rd May, 2016. Further Section 35F stood amended w.e.f. 06/08/2014, provided for pre-deposit of 7.5% of the amount in dispute. We find that the appellant have deposited much more amount than the prescribed 7.5%, under the modified Section 35F. Accordingly, we allow this miscellaneous application and modify the earlier final order of this Tribunal dated 28th November 2014, accepting the pre-deposit made by the applicant on 3rd May, 2016. The learned Commissioner (Appeals) are directed to hear the appellant on merits and dispose of the appeal accordingly.

Summary

Issues:
Modification of pre-deposit amount in a final order due to a delay in appeal process.

Analysis:
The appellant filed a miscellaneous application seeking modification of a mistake in the final order dated 28/11/2014, which required a pre-deposit of ?7.50 lakhs before the appeal could proceed. The appellant had initially approached the Hon'ble Madhya Pradesh High Court, Jabalpur, which directed them to appear before the Tribunal for modification. However, the Tribunal rejected their modification application on 19/02/2016. Subsequently, the appellant made the pre-deposit on 3rd May, 2016, and requested the Commissioner (Appeals) to hear the appeal on merits. The Commissioner (Appeals) rejected the request citing the expiry of the time given for pre-deposit. The appellant then filed another miscellaneous application for an extension of time, which was dismissed by the Tribunal as a repetition. The appellant argued that their non-appearance was due to not receiving the hearing notice and sought a modification of the final order in the interest of justice.

The learned Counsel for the appellant contended that there was no deliberate delay on their part and requested a modification. The learned DR opposed the modification, citing a ruling of the Hon'ble Supreme Court regarding a delay in pre-deposit. The Supreme Court had directed the payment of interest for delayed pre-deposits. After considering the arguments, the Tribunal noted that the appellant had already made the pre-deposit of ?7.50 lakhs on 3rd May, 2016, which exceeded the prescribed 7.5% under the amended Section 35F. Consequently, the Tribunal allowed the miscellaneous application, modified the earlier final order, and directed the Commissioner (Appeals) to hear the appellant on merits within 45 days from the receipt of the order. The appellant was instructed to seek an opportunity of hearing before the Commissioner (Appeals) as per the law.

In conclusion, the Tribunal granted the modification requested by the appellant based on the pre-deposit made and the amended provisions of Section 35F. The decision aimed to ensure a fair hearing for the appellant before the Commissioner (Appeals) in accordance with the law.