2019 (1) TMI 317 - HC - Central Excise

Non-compliance with pre-deposit - ex parte order - the contentions raised in the application for modification/variation of such ex parte order not addressed - Held that - The appellant is now agreeable to put in the statutory pre-deposit for an appeal as now required. In addition to the statutory pre-deposit of 7.5 per cent of the duty amount, the appellant is directed to put in a further 2.5 per cent of the duty amount as deposit with the Appellate Tribunal which additional amount will abide by the result of the appeal before the Appellate Tribunal. The appellant says that a sum of ₹ 4 lakh remains deposited with the Appellate Tribunal. The total amount of 10 per cent in terms of this order will be computed after taking into account the sum of ₹ 4 lakh already deposited - application disposed off.

Summary

Issues:
Delay in preferring the appeal, Dismissal of appeal for non-compliance of ex parte order for pre-deposit without addressing contentions in application for modification/variation.

Analysis:
The judgment by the High Court of Calcutta dealt with the condonation of delay in preferring an appeal and the issue of dismissing an appeal for non-compliance of an ex parte order for pre-deposit without addressing the contentions raised in the application for modification/variation of such order. The substantial question of law raised was whether an appeal can be dismissed solely for non-compliance with the pre-deposit requirement without considering the contentions raised in the application for modification/variation of the ex parte order. The Court noted that the Appellate Tribunal did not address the merits of the appeal before it, solely on the ground of non-compliance with the pre-deposit requirement, despite the appellant seeking a modification of the order due to the understanding that it was a case of clandestine removal of goods.

The Court directed the appellant to make a statutory pre-deposit of 7.5% of the duty amount, along with an additional 2.5% to be deposited with the Appellate Tribunal pending the appeal outcome. The appellant was required to deposit a total of 10% of the duty amount, including any previous deposits, within thirty days. Failure to comply would result in the Appellate Tribunal's order remaining unaffected. If the deposit was made within the specified time frame, the impugned order would stand set aside, and the appeals would be restored before the Tribunal for a decision in accordance with the law. The Court disposed of the relevant appeals, with no order as to costs.

In conclusion, the judgment addressed the issues of delay in preferring the appeal and the dismissal of an appeal for non-compliance with an ex parte order for pre-deposit. The Court emphasized the importance of complying with the statutory pre-deposit requirements and provided a clear directive for the appellant to follow within a specified timeframe to set aside the impugned order and have the appeals restored before the Appellate Tribunal for further consideration.