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TMI Blog2008 (1) TMI 866X X X X Extracts X X X X X X X X Extracts X X X X ..... nt a representation to the Commissioner, Central Excise informing its willingness to avail the scheme, as prescribed under Rule 96ZP of the Central Excise Rules. (iii) Accordingly, the Commissioner, by the order dated 23-2-1998 fixed the ACP in respect of the petitioner's factory at 4930.864 MTs. (iv) Thereupon, the petitioner moved the High Court challenging the validity of Section 3A of the Act. (v) In that writ petition an interim order was passed. In pursuance of the said interim order, petitioner calculated its actual production for the period from September, 1997 to August, 1998 at 1583.55 MTs. And discharged its liability by making the payment towards the Excise Duty. (vi) On 22-9-1998, the petitioner sent another representation to the Commissioner of Excise disputing the ACP fixed by him by the order dated 23-2-1998, thereby requesting the Commissioner to refix the ACP. (vii) The said representation was rejected by the Commissioner on 9-12-1998. (viii) Thereupon, the petitioner filed an appeal before the CEGAT, which, in turn set aside the order and remanded the matter for fresh adjudication. (ix) On that basis, the matter was re-opened. The Commissioner of Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd without adjusting the amount paid earlier. Both authorities have failed to adjust the amount already paid by the assessee and failed to take into account the refund due to the assessee. Thereupon, on 3-8-2004, the Tribunal simply dismissed the appeal without considering the orders. Therefore, the orders passed by the authorities on various dates are wrong." 4. In reply to the above submissions, Dr. J.P. Gupta, learned counsel appearing for the respondents has submitted :- "Against the order dated 4-9-2003 an appeal has been filed before the Tribunal and the Tribunal while entertaining the appeal, followed the provisions of Section 35F of the Central Excise Act and passed a conditional order of stay dated 26-5-2004 directing the petitioner to deposit ₹ 17 lakh out of the duty demanded pending disposal of the appeal and therefore, the merits of the matter could be argued before the Tribunal after complying with the conditions imposed by the Tribunal while the appeal is taken up for hearing and as such this Court may not under Article 226 consider the merits of the matter as the petitioner has not chosen to avail the remedy available before the Appellate Tribunal." 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. 13. Taking into consideration the Section 35F, the Tribunal entertained the appeal and as against the payment of total amount of ₹ 22,11,043/- directed the petitioner to make a pre-deposit of ₹ 17 lakh. Therefore, it cannot be said that the interim conditional stay order passed by the Tribunal is without jurisdiction. 14. The impugned order dated 26-5-2004 passed by the Tribunal, which is under challenge, in our view, is very much lawful within the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenging the order of the Tribunal CEGAT granting partial stay on conditional deposit while dealing with the application for waiver of the pre-deposit and also the subsequent order dismissing the appeal for non-compliance of such order as the amount directed to be deposited was not deposited within the time frame. The Delhi High Court finally decided the issue which is reported in 2002 (143) E.L.T. 515 (Del.) [Raju Metal Industries v. Union of India] by holding that in these cases there is little scope for the High Court to interfere, especially the conditional deposit was directed to be made under Section 35F and dismissed the writ petition directing the CEGAT to allow the petitioner to make the requisite deposit by giving some more time. 17. The above said judgment was challenged before the Supreme Court. The Supreme Court, ultimately, dismissed the Special Leave Petition by the order dated 11-12-2000. This also has been reported in 2002 (145) E.L.T. A165 (S.C.). 18. It would be worthwhile at this stage to refer to the observations made by the Delhi High Court as well as Supreme Court (i) The observation of the Delhi High Court is as follows :- [Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen appeal has already been dismissed for non-compliance with the direction for deposit. Tribunal has taken note of the relevant facts and directed to deposit ₹ 25 lakhs. We do not find any reason to interfere with the conclusions. However, if the deposit is made by 9th February, 2001, and this aspect is brought to the notice of the Tribunal, it would do well to restore the appeal for disposal on merits. 4. The petition stands disposed of accordingly. [Reported in 2002 (143) E.L.T. 515 (Del.) (Raju Metal Industries v. Union of India)] (ii) The observation made by the Supreme Court is as follows :- The petitioner by way of writ petition challenged before Delhi High Court the CEGAT order granting partial stay while dealing with an application for waiver of pre-deposit and subsequently dismissing the appeal for non-compliance of such order as the amount in question (Rs. 25/- lakhs) was not deposited. The Delhi High Court had held that in cases of this nature there is little scope for interference, particularly when appeal was already dismissed by Tribunal for non-compliance with the direction for deposit. Tribunal has taken note of the relevan ..... 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