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TMI Blog2014 (5) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... aside and quashed. The writ application is, accordingly allowed. The learned Tribunal shall consider the Miscellaneous Application afresh in the light of the observation made above without granting unnecessary adjournment but upon compliance with the requisite provisions of law with regard to service of notice of dates of hearing. - W.P. No. 27 (W) of 2013 - - - Dated:- 16-1-2013 - Indira Banerjee, J. Shri Atish Dipankar Ray, Siddharth Das, Ms. Soumali Basu and Gourav Khaitan, for the Petitioner. Shri Rajarshi Bharadwaj, for the Respondent. ORDER This writ application is directed inter alia against an order dated 25th October, 2012 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid order dated 17th November, 2011 was dispatched on 22nd November, 2011. On 9th January, 2012 no one appeared for the applicant, nor was any request for adjournment made. The matter was accordingly adjourned by the Tribunal till 30th January, 2012. The matter was listed on 13th February, 2012 for reporting compliance. On 14th February, 2012 the appeal was dismissed on the ground of non-compliance of the Order dated 17th November, 2011 whereby the writ petitioner had been directed to deposit the outstanding dues as adjudicated. According to the petitioner, the Order dated 17th November, 2011 was only received on 18th January, 2012. Six weeks from 18th January, 2012 meant that the petitioner could make pre-deposit within 29th Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner, it might also be served by affixing a copy thereof in some conspicuous part of the factory or warehouse or other place of business or at the usual place of residence, the notice may be put up on the notice board of the office of the concerned authority which took such decision and/or issued the order and/or notice. There is substance in Mr. Ray s contention that when statute and/or statutory rules require that a thing should be done in a particular manner, it is to be done in that manner alone or not at all, as held by the Hon ble Supreme Court in its judgment reported in AIR 1975 SC 915 (para 25). The appeal might have been taken up for hearing on 14th on oral intimation or by notice in the notice board only if both the parties had c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recall vary and/or modify an order for pre-deposit. 11. In the instant case, the Miscellaneous Application had been dismissed on the reasoning that once an order under Section 35F of the Central Excise Act, 1944 had been passed, the learned Tribunal could not modify or review the aforesaid judgment. In arriving at its aforesaid finding the learned Tribunal relied on the judgment of the Karnataka High Court in the case of Commissioner of Central Excise, Bangalore-III v. McDowell Company Ltd. reported in 2005 (186) E.L.T. 145 (Kar.). The portion of the judgment relied upon by the learned Tribunal is extracted herein below for convenience : 33. I am unable to accept the contention that an existence of mere prima facie case in itself a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Bangalore-III v. McDowell Co. Ltd. (supra). 13. An interim order can always be modified for the ends of justice and the rules expressly provided for such modification. Needless to mention that no final order disposing of an appeal on merits can be modified. It cannot also be reviewed, unless the rules expressly provide for review. 14. Mr. Bharadwaj took a preliminary objection to the maintainability of the writ application. Mr. Bharadwaj submitted that there was an alternative remedy of appeal available to the writ petitioner. This Court should remit the writ application to its recourse to the alternative remedy of appeal. 15. Section 35G of the Central Excise Act, 1944 provides that an appeal shall lie to the High Court from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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