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TMI Blog2015 (12) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... or by him in terms of order passed by the ld.Tribunal dt.27.04.2006, he will remain remediless and taking note of the long litigation, we are of the view that the petitioner deserves indulgence to be afforded an opportunity to comply with the order of pre-deposit passed by the CESTAT dt.27.04.2006 on his application filed u/Sec.35-F of the Act within a period of thirty days from today, the appeal which was filed before the CESTAT deserves to be restored and heard on merits. - petition is disposed of with the direction that if the petitioner now complies with the condition of pre-deposit in terms of the order of CESTAT dt.27.04.2006 on his application filed u/Sec.35F of the Act, be restored and the same be heard on merits. - Decided in favor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-deposit in compliance of the order passed by the CESTAT u/Sec,35-F dt.27.04.2006. 3. A show cause notice dt.09.02.2005 came to be issued by the Deputy Commissioner of Central Excise, Alwar for recovery of duty and imposition of penalty and after affording opportunity of hearing, the adjudicating authority vide its order dt.27.06.2005 confirmed the Excise Duty of ₹ 12,63,598/- along with the penalty of ₹ 1,00,000/-. The petitioner-Company being aggrieved by the order, in original, filed appeal before the Commissioner (Appeals) which came to be rejected vide order dt.08.12.2005 and that came to be challenged in appeal before the Central Excise Service Tax Appellate Tribunal (CESTAT) along with stay application under prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f its compliance i.e. on 21.06.2006 and the earlier writ petition also came to be dismissed, the petitioner was advised to file a fresh writ petition before the High Court of Delhi being Writ Petition No.1097/2007 and that came to be dismissed as withdrawn on 13.03.2007 in view of the fact that question of law raised before the High Court of Delhi has already been raised before the CESTAT by filing of review/recalling application but to the dismay of the petitioner, the CESTAT vide its order dt.12.04.2007 dismissed the application for recalling/restoration application taking note of the fact that the petitioner has failed to deposit in terms of the original order passed by CESTAT on the application filed by petitioner u/Sec.35-F of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms of order dt.27.04.2006 passed by the CESTAT and further submits that the statutory right of appeal, is not dependent upon compliance of pre-deposit, as contemplated u/Sec.35F of the Act and even if the petitioner failed to comply with the order of pre-deposit in terms of Sec.35-F of the Act dt.27.04.2006, at least the appeal which he preferred could not have been dismissed on account of non-compliance of order passed by the CESTAT dt.27.04.2006 and in support of his submission, counsel placed reliance on judgment of the Hon'ble Supreme Court in Balaji Steel Re-Rolling Mills Vs. Commissioner of Central Excise Customs [Civil Appeal No.10265/2014 arising out of SLP (C) No.8738/2014] and submits that without going into merits the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be frustrated and in the present facts circumstances, if the petitioner is not permitted to deposit, as prayed for by him in terms of order passed by the ld.Tribunal dt.27.04.2006, he will remain remediless and taking note of the long litigation, we are of the view that the petitioner deserves indulgence to be afforded an opportunity to comply with the order of pre-deposit passed by the CESTAT dt.27.04.2006 on his application filed u/Sec.35-F of the Act within a period of thirty days from today, the appeal which was filed before the CESTAT deserves to be restored and heard on merits. 11. Consequently, the instant writ petition is disposed of with the direction that if the petitioner now complies with the condition of pre-deposit in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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