Allahabad High Court
Fine Stamps Engineering (P) Ltd. vs Union Of India (Uoi) on 3 July, 1995
Equivalent citations: 1995(79)ELT9(ALL)
ORDER K.L. Sharma, J.
1. This is a writ petition under Article 226 of Constitution of India for quashing the final order No. A/628/94-NRB, dated 5-7-1994 passed by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi whereby the waiver application filed by the petitioner alongwith appeal was rejected and the appeal was dismissed due to default in depositing the amount within the prescribed time.
2. I have heard Shri A.P. Mathur learned counsel for petitioner and Mr. Shisheer Kumar learned standing counsel for the respondent and perused the material brought on record. The learned standing counsel informs that no counter affidavit will be filed by the respondents. Both the counsels are agreed that the writ petition may be finally disposed of with the necessary direction.
3. The petitioner was assessed Rs. 61,358.21 as Excise duty by Deputy Collector, Central Excise. He filed an appeal which was confirmed by Collector Appeals, Central Excise. Thereafter, he filed Second Appeal before the Tribunal alongwith an application for waiver to condition of pre-deposit under Section 35F of Central Excises and Salt Act. The Tribunal rejected the waiver application and directed the petitioner to deposit the duty of Rs. 61,358.21 within two months. The petitioner challenged the order of rejection of waiver application by filing the present writ petition but he was not granted any stay order in the writ petition and consequently the time of two months to make the pre-deposit has expired. However, the petitioner has deposited the duty amount of Rs. 61,358.21 on 19.8.1994 in the State Bank of India, Kanpur in connection with the second appeal pending before the Tribunal Since the two months time has already expired the pre-deposit had not been made, the Tribunal has dismissed the appeal for non-compliance of the legal requirement on 3-4-1994. Therefore, the petitioner, has been deprived of his statutory right of appeal even though he has deposited the full amount of Rs. 61,358:21 in the Tribunal.
4. By amendment of writ petition, the petitioner challenged the order of dismissal of appeal on the ground his statutory right of appeal cannot be taken away if he deposited the amount after the expiry of the prescribed time. The learned counsel for petitioner informs that the petitioner had also moved an application before the Tribunal after rejection of appeal in view of the subsequent deposit of duty amount and for hearing of the appeal on merit but this application was summarily rejected by the learned Tribunal.
5. The learned counsel for petitioner has now contended that even though the petitioner was at fault due to his failure of complying with the condition of pre-deposit of the duty in connection with the second appeal, he should not be penalised in the interest of justice, if he subsequently deposited the entire duty amount and moved an application before the Tribunal for restoration of appeal for hearing on merit. I find substance in his contention for the reasons that the statutory right of appeal subject to condition of pre-deposit of duty amount, it should be treated as a valuable right of the assessee. If assessee ultimately deposited the entire amount of duty and still wants to contest the amount of duty under law, the interest of justice requires that an opportunity of hearing should be given to him. The learned Tribunal was, therefore, not justified to reject the application for restoration of the appeal on depositing of entire amount of duty and for depriving the petitioner of his valuable right conferred by law. Therefore, it is considered just and proper that the Tribunal should be directed to reconsider the restoration application and hear the appeal on merit.
6. This writ petition is finally disposed of with the direction that the learned Tribunal shall re-consider and decide in the light of observations made hereinabove, the petitioner's application for setting aside the dismissal order of appeal and for its restoration to its original number and for hearing of the appeal on merit after affording full opportunity to the learned counsel for the appellant as well as departmental representative for the revenue, within a period of three months.