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TMI Blog1999 (3) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to comply with the provisions of Section 35F of the Central Excise Act, 1944 which are mandatory. According to the Commissioner (Appeals), the appeals could not be maintained, entertained and heard on merit. In the opinion of the Commissioner (Appeals), as the conditions were not fulfilled the Appeals were required to be dismissed for non-compliance of the provisions of Section 35F of the Central Excise Act, 1944 and accordingly dismissed the appeals. Reading para 6 of the order passed by the Commissioner (Appeals), on 24-10-1997, it is clear that the applications for stay were submitted and direction was given to deposit the amounts by 15-10-1997. 3.Being aggrieved by the orders of dismissal of appeals, nine appeals were preferred before the Customs Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT'), West Regional Bench at Bombay. After considering the facts in short, the Tribunal pointed out that in all these cases, the appellants failed to comply with the directions of pre-deposit of the duty demanded in terms of Section 35F of the Central Excise Act, 1944, hence the Commissioner (Appeals) dismissed all the appeals. It appears that the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt at any time hearing on merits, but the words used are "subject to showing that they have pre-deposited the disputed duty amount". Thus, the Tribunal in clear terms, directed that if they have already complied with the direction of depositing the amount, then the order of setting aside the impugned order and remanding the matter will come into force and not otherwise. If the Tribunal was of the view that either time is to be extended or on account of hardship, amount is to be reduced then such specific order would have been passed. The order was passed on 20-4-1998. Thereafter, the appellants have observed silence. But after introduction of the Kar Vivad Samadhan Scheme, 1998, namely, on 1-9-1998, they became conscious of the fact that some directions have been given by the Tribunal. 6.Mr. Paresh Dave, learned Advocate appearing for the petitioners in all these matters, submitted that by letters, dated 5-11-1998, 30-10-1998 and 30-10-1998 in Special Civil Application No. 1664/99 and similar other matters, the petitioners were called upon to take the benefit of Kar Vivad Samadhan Scheme and it is because of their invitation, forms were filled in. It is submitted that on 22-1-199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 wherein 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." According to his submission, the Appeals cannot be dismissed and are required to be heard on merit as per the order passed by the Tribunal, irrespective of non-compliance of the direction. He further submitted that in a given case, if the Appellant has not deposited the amount as required, then in that case, there will be no question of dismissing the appeal, but the appeal will have to be heard on merits and it would be for the adjudicating authority to recover the amount from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal comes up for hearing in the normal course. He submitted that in the instant case also the appeals are pending. Sections 169 and I70 are as under : "169. Appeal against the levy of assessment of any tax under this Act shall lie to the court of the District Judge of Delhi. (2) to (6)..... "170. Conditions of right to appeal. - No appeal shall be heard or determined under Section 169 unless - the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under Section 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein), or, as the case may be, within thirty days of the date on which an amendment is finally made under Section 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the notice of assessment or of alteration of assessment or if no notice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof : Provided that an appeal may be admitted after the expiration of the period prescribed therefor by this Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Enforcement Directorate under the provisions of the Customs Act imposed a penalty of Rs. 3,00,000/- on the appellants. Against order, the appellants preferred respective appeals to the Appellate Tribunal under Section 129A of the Act. The Appellate Tribunal reduced the amount of penalty to be deposited with application under Section 129E of the Act pending hearing of the appeal to Rs. 1,00,000/- for each of the appellants. The Appellate Tribunal was moved for further reduction and after considering the facts and circumstances of the case and taking into consideration all the relevant material facts and factors, by its order, dated 17th February 1987, declined to do so and dismissed the appeals for non-compliance with the provisions of Section 129E of the Act. 12.Section 129E of the Act as stated above, is similar to Section 35F of the Central Excise Act. In para 5, the Apex Court pointed out that the aforesaid section provides a conditional right of appeal in respect of an appeal against the duty demanded or penalty levied. Although the section does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the explanation has been given. Section 95 (ii)(c) of Kar Vivad Samadhan Scheme, 1998 reads as under : "95. The provisions of the Scheme shall not apply — xxx xxx xxx in respect of tax arrears under any indirect tax enactment. xxx xxx xxx. xxx xxx xxx. In a case where no appeal or reference or writ petition is(c) admitted and pending before any appellate authority or High Court or the Supreme Court or no application for revision is pending before the Central Government on the date of declaration made under Section 88." Thus, if appeal is preferred and is admitted, but not pending on the date when declaration is made under Section 88, the Scheme is not attracted. Dismissal of appeals may be for non-compliance of the order passed in stay application. In the instant case, order of remand was conditional and there was failure to deposit the amount. As the order was conditional, would become operative only if condition was fulfilled. Question of remand will arise only if appellant has pre-deposited the amount and material is placed to show that the order is already complied with by pre-depositing the amount. For pre-deposition no time was granted. 15.Trade notice on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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