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TMI Blog2009 (7) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-2009 and dismissal of writ petition as withdrawn, the appellant came to Tribunal on against the order dated passed by the learned Commissioner (Appeals). Held that- Impugned order not considering the encashment of bank guarantee and other evidences produced by assessee. In view of the particular circumstances of case, matter remanded to the lower authority to hear without insisting on pre-deposit. - C/421/2009-Cus.(BR) - C/S/1904/2009 - C/396/2009(PB), Stay Order No. C/233/2009(PB) and - Dated:- 21-7-2009 - S/Shri D.N. Panda, Member (J) and Rakesh Kumar, Member (T) Shri Priyadarshi Manish, Advocate, for the Appellant. Shri Vijay Kumar, SDR, for the Respondent. [Order per: D.N. Panda, Member (J)]. - Learned Counsel S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: (1) The appellants imported Capital goods under 10% concessional EPCG Scheme on which it took the benefit of duty forgone amounting to Rs.64,08,576/- and not Rs.78,50,751/- as alleged by the department. For this duty forgone, the appellants were under obligation to export goods manufactured from the use of the capital goods imported and that export shall be 4 times of the CIF value of the imports. In addition to such obligation, the appellant was also required to maintain past export performance equivalent to average of export made during preceding 3 years. However, due to change in fashion and also price factor the demand forces compelled the appellants to shift their production primarily from marble to slate and other building stones ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by order dated 18-5-2005, passed by the learned Commissioner (Appeals), the appellant approached the Hon'ble High Court of Delhi in Writ Petition (C) No. 9660 of 2009 and CM No. 7734 of 2009. But that writ petition was dismissed as withdrawn because the appellant was directed by Hon'ble High Court to challenge the impugned order before the CESTAT within one week. Till that time, the order passed by the learned Commissioner (Appeals) was made inoperative. Therefore, this appellant is before the Tribunal carrying the same grievance what was before the Hon'ble High Court of Delhi. 4. Shri Manish earnestly prays that the appellant may be rendered justice without being thrown since Hon'ble High Court required statutory remedy be availed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarantee of Rs.31,66,464/- has already been enchased as per averment of the appellant. In the meantime, 30 day time has expired on 25-6-2009. Before this date, the appellant was before the Hon'ble High Court of Delhi as aforesaid. Upon direction of Hon'ble High Court on 19-6-2009 and dismissal of writ petition as withdrawn, the appellant came to Tribunal on 25-6-2009 against the order dated 18-5-2009 passed by the learned Commissioner (Appeals). 8. When we look into the pitiable condition of appellant, we find that law although does not expressly provide to intervene against an interim order passed by an appellate authority below, this is a peculiar case where the litigant shall suffer when it was thrown from the process of justice when i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CCE Jaipur-I reported in 2008 (226) E.L.T. 468. Tribunal has held in para 8 of the order as under:- "It would thus appear that the question as to whether particular letter or communication amounts to order or decision so as to make the appeal maintainable would depend on facts of each case. If on consideration of the facts and circumstances, it is found that the pointed question to the learned Departmental Representative that if the appeal is held to be not maintainable, what would be the remedy of the appellant. The law does not countenance a situation where the person is rendered remediless. In the circumstances of the case, the only option available to the appellant was to approach the Commissioner and the Commissioner was obliged ..... X X X X Extracts X X X X X X X X Extracts X X X X
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