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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 ..... aforesaid Miscellaneous Application was filed by the petitioner praying that the Orders of the learned Tribunal No. S-339-341/KOL/2011, dated 17th November, 2011 and A-85-87.KOL/2012, dated 14th February, 2012 be recalled and/or modified. 3. Aggrieved by an Order-in-Original No. 29/Commr (De novo)/CE/KOL-V/Adjn/09, dated 31st March, 2009 passed by the Commissioner of Central Excise, Kolkata-V, the writ petitioner preferred an appeal being Excise Appeal No. E/A/387/2009 therefrom. The petitioner also made an application under Section 35F of the Central Excise Act, 1944 for waiver of pre-deposit. 4. The said application was listed for hearing before the learned Tribunal on 14th November, 2011 when one K. Goswami, clerk of the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the petitioner. The petitioner has claimed that the petitioner had no notice of the date of hearing on 14th February, 2012. The appeal was posted for hearing on 13th February, 2012. On that day no work was held since a sitting member of CESTAT posted at Ahmedabad had died. The petitioner has contended that the petitioner was entitled to a fresh notice of hearing. 7. On behalf of the respondents however, it was contended that all the lawyers, who attended the learned Tribunal on 13th February, 2012 were duly informed that matters which could not be taken on that day would be taken up the next day. A notice to that effect was also put up on the Notice Board. 8. However, as per Rule 18 of the Customs, Excise and Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its there are no materials on record to show that the petitioner had no notice. Had the petitioner attended the hearing on 13th February, he would have known of the postponement of the hearing till 14th February. Knowledge of the notice cannot however, be presumed. It is absurd to suggest that if the petitioner had been present on the 13th it would have known of the hearing on 14th. It is quite possible that on knowing that the appeal would not be taken up, the petitioner and/or its representative may have thought it unnecessary to actually enter the Tribunal premises. Be that as it may, the statutory requisites as indicated above had not been complied with. The Order dated 14th February, 2012 is patently not sustainable in law. 10. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. It is necessary to recall some words of caution and wisdom sounded by the Supreme Court in this regard in the case of Jesus Corporation referred to earlier. If the test is applied, the order is woefully lacking in the Tribunal having not exhibited its awareness to the requirements of proviso of Section 35F of the Act. It is also clear that the Tribunal after having exercised jurisdiction for the purposes of passing an order for waiver of pre-deposit under the proviso to Section 35F of the Act cannot modify that order subsequently like an appellate authority, nor can keep tinkering with the order as and when applications for modification of the order are filed. It is significant to notice that the Supreme Court has ruled that the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. The alternative remedy of appeal is subject to the satisfaction of the High Court that not only a question of law but a substantial question of law is involved. Where the alternative remedy is not definite, but subject to the satisfaction of the High Court of involvement of a substantial question of law, a writ application should, in my view, not be rejected on the sole ground of existence of an alternative remedy of appeal. Moreover, it is doubtful whether any substantial question ..... X X X X Extracts X X X X X X X X Extracts X X X X
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