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TMI Blog2015 (6) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... r, followed by the institution of Tax case No. 4/2009 and the observation in Writ Petition (T) No. 3008/2010 preferred against the order dated 12-2-2009 of the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (hereinafter called 'Tribunal') dismissing the Appeal, granting liberty to avail alternative remedy of appeal, we deem it proper in the facts and circumstances of the case to condone the delay. 2. Aggrieved by a demand of CENVAT duty for Rs. 1,91,40,224/- along with equal amount of penalty and interest passed on 19-09-2008 by Commissioner, Excise, the petitioner preferred an Appeal before the Tribunal. It also sought unconditional stay for pre-deposit of the entire amount. The Tribunal on 7-1-2009 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to be exercised reasonably and fairly as undue hardship in deposit has to be considered in the facts and circumstances of each case. 5. Since the order dated 7-1-2009 was passed behind the back of the Petitioner, it was deprived of the right and opportunity to convince the Tribunal with regard to its undue hardship in pre-deposit of Rs. 50,00,000/- as ordered by the Tribunal. A bona fide prayer for adjournment had been made for the date of hearing fixed on 7-1-2009 and no order had been passed with regard to the same. The Petitioner is now ready and willing to comply the order 7-1-2009 by pre-deposit of Rs. 50,00,000/-. The order dated 12-2-2009 dismissing the Appeal for failure to deposit the same may be set aside and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated for recovery of the principal amount of Rs. 1,91,40,224/- along with penalty and interest 8. We have heard and considered the submissions on behalf of the parties. 9. Section 35F of the Act provides for deposit of the duty demanded and penalty levied before the Appellate Tribunal. The Proviso vests the Tribunal with discretion in a case of undue hardship to dispense the deposit subject to such conditions as it may deem fit to impose so as to safeguard the interests of Revenue. 10. The order dated 7-1-2009 reveals that the matter was fixed for hearing before the Tribunal on 22-12-2008, but was adjourned at the request of the Petitioner. It, therefore, had full knowledge of the next date of hearing on 7-1-2009. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire system of adjudication would itself collapse for uncertainty of hearing. 12. The submission that the Petitioner was not negligent or indolent litigant because he had filed Writ Petition (T) No. 1023 /2009 followed by Tax Case No. 4/2009 and Writ Petition (T) No. 3008/2010 does not appeal to us. By filing the aforesaid Writ Petitions and Tax Case, the Petitioner essentially sought to take advantage of its own wrong and retained a benefit unlawfully by failure to make pre-deposit even under order dated 7-1-2009. If the Petitioner was acting bona fide nothing prevented it from appearing before the Tribunal on 12-2-2009 and seeking extension of time for pre-deposit as ordered on 7-1-2009. Nothing has been demonstrated before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the pre-deposit amount. 14. In the present case, the period is for in excess of 16 months. If the Petitioner is now willing to deposit the pre-deposit amount there is no reason why he could not have made the same request on 12-2-2009 or in the earlier round of litigations filed by it. Though counsel for the Respondents has prayed for 12% interest, we are not inclined to grant the same as we are of the opinion that it may be excessive. If petitioner deposits the sum of Rs. 50,00,000/- with interest at the rate of 9% per annum from 12-2-2009 within a maximum period of 30 days from today, the Tribunal shall proceed to adjudicate the Appeal on merits. The order dated 12-2-2009 is set aside conditionally. If the petitioner does not make th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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