Punjab-Haryana High Court
Haryana Petrochemicals Ltd. vs Commr. Of C. Ex., (Adj.), New Delhi on 28 February, 2002
Equivalent citations: 2002(142)ELT547(P&H)
Author: N.K. Sud
Bench: N.K. Sud
ORDER Jawahar Lal Gupta, J.
1. On January 23, 2001 the Commissioner (Adjudication), Central Excise, confirmed the demand for the levy of Excise Duty of Rs. 2,52,77,940/- against Petitioner No. 1. He further ordered the confiscation of 84990 kilograms of Polyester chips valued at Rs. 55,72,450/-. Option for redemption on payment of fine of Rs. 20 lacs as well as the Central Excise Duty was also given. Orders for imposition of penalty were also passed. Aggrieved by the order, the petitioners along with M/s. Emmtex Synthetics Pvt. Ltd. approached the Customs, Excise & Gold (Control) Appellate Tribunal. The petitioners filed four stay applications for waiver of pre-deposit. It is alleged that the request of M/s. Emmtex was accepted and order for pre-deposit of Rs. 5 lacs was permitted. However, the request made by the petitioners was declined vide order, a copy of which has been produced as Annexure P-1 with the writ petition.
2. The petitioners allege that the submissions made on their behalf were not considered. The name of the Counsel who appeared for them was not recorded. In fact, the name and arguments of the Counsel were recorded in the case filed by M/s. Emmtex. Even the material facts were not noticed. Consequently, applications for rectification were filed. These were also dismissed. Copy of the order passed on the rectification petitions is at Annexure P-2 with the writ petition. The petitioners pray that the orders at Annexures P-l and P-2 be quashed and that the Tribunal be directed to hear their appeals without insisting upon the pre-deposit.
3. In response to the notice of motion, a written statement has been filed on behalf of the respondent. It has been averred that the Tribunal has rightly decided the applications under Section 35F of the Central Excise Act, 1944.
4. Counsel for the parties have been heard.
5. Admittedly the Tribunal has directed the petitioners to make a total deposit of Rs. 1,94,00,000/-. It is also not disputed that in the appeal filed by M/s. Emmtex against the order dated January 23, 2001, which has been impugned by the present petitioners, the Tribunal has made an order for the deposit of only Rs. 5 lacs. Keeping in view this factual position as also the submissions made by the Counsel for the parties, we think it would be appropriate if the appeals filed by the petitioners are heard on their making a deposit of Rs. 10 lacs. We are passing this order after noticing the factual position regarding the cash flow of Petitioner No. 1 as presented by the Counsel before the Bench; It is taken on record as Mark 'A'. The document shows that Petitioner No. 1 has a present Bank Balance of Rs. 12.21 lacs. Since the matter has to be finally decided by the Tribunal, we are not making any comment on the merits of the controversy. In fact, in view of the factual position the Counsel for the petitioner has accepted this figure as reasonable.
6. In view of the above, the orders at Annexures P-1 and P-2 are set aside.
7. The writ petition is disposed of with the direction that in case the petitioners make the deposit of Rs. 10 lacs on or before March 31, 2002, the Tribunal shall hear and decide their appeals on merits and shall not dismiss them on the ground of failure to make the deposit. It shall be appreciated if the Tribunal decides the appeals expeditiously, preferably within three months after the deposit. In the circumstances, there will be no order as to costs.
A copy of the order be given Dasti to the Counsel for the parties on payment of usual charges.