2011 (7) TMI 449

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..... ainst the order of Commissioner(Appeals) passed on 23.10.2010, vide which the appellate authority dismissed the appeal for non-compliance with the Stay Order passed by him, directing the applicant-appellants to deposit Rs.15 lakhs (Rupees Fifteen Lakhs only), of Rs.2.50 lakhs (Rupees Two Lakhs, Fifty Thousands only) and of Rs.5 lakhs (Rupees Five Lakhs only) as a condition of hearing of their appeal. It is seen that M/s Shree Krishna Polyester Ltd., who are engaged in manufacture of Cotton Knitted Yarn, was directed to make a pre-deposit of part amount out of the total duty of Rs.33 lakhs (Rs. Thirty Three only) confirmed against them. The said duty stand confirmed against M/s Shree Krishna Polyester Ltd., by denying them the MODVAT Credit .....

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..... their application.   3. Subsequently, the applicant was informed vide letter dt.9.9.10 issued from the office of Commissioner(Appeals) that earlier order passed on 23.10.09 should be treated as final order. Accordingly, the appellants vide letter dt.16.9.10 informed Commissioner(Appeals) that they would file the appeal against earlier order within 90 days from the date of receipt of above communication dt.9.9.10. Their appeals were then filed on 6.10.10.   4. Ld.Advocate submits that they were under bonafide belief that the order of dismissal by Commissioner(Appeals) would be recalled by appellate authority inasmuch as they have deposited the amount in question. The said plea was further strengthened by the fact that they were g .....

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..... we find no intended lapse on the part of the appellant so as not to condone the delay in filing the appeal. In view of the above, we condone the delay in filing the appeal and allow the COD application.   7. As regards Stay Petitions, we find that the appellants have deposited the directed amounts by Commissioner(Appeals). By treating the same as sufficient, we dispense with the condition of pre-deposit of balance duty and penalty and allow the Stay Petitions accordingly.   8. We further note that the Commissioner(Appeals) has not decided the appeals on merit. We, accordingly, set aside the impugned order and remand the matter to Commissioner(Appeals) for decision on merit.   9. COD applications as also Stay Petitions get .....

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