2015 (9) TMI 1598 - HC - Central Excise

Appeal delay condoned, admitted on substantial law question. Tribunal sets aside dismissal on deposit. Hear promptly post deposit.

The delay in preferring the appeal was condoned, allowing the appeal to be registered. The appeal was admitted based on a substantial question of law ... Maintainability of application - non-speaking order - Whether in the facts and circumstances of the case, the Tribunal was justified in law in dismissing the miscellaneous application summarily as well as the appeal without dealing with the contentions raised by the appellant in the said miscellaneous application and the said order is unsustainable, being non-speaking? Held that: - since it is submitted on behalf of the appellant that they are ready and willing to deposit a sum of ₹ 35 lakhs within a period of eight weeks from date, the impugned order passed on 25th November, 2013 is set aside and quashed - On such deposit of ₹ 35 lakhs within eight weeks from date, the Customs, Excise and Service Tax Appellate Tribunal, Kolkata shall hear the appeal preferably within eight weeks after giving an opportunity of hearing to the parties - application disposed off. Issues:1. Condonation of delay in preferring appeal against the order dated 25th November, 2013.2. Admitting the appeal preferred against the order dated 25th November, 2013.3. Justification of dismissing the miscellaneous application summarily by the Tribunal.4. Waiver of pre-deposit of 50% of duty by the Tribunal.5. Setting aside and quashing the impugned order of 25th November, 2013.Condonation of Delay:The appellant sought condonation of delay in preferring appeal against the order dated 25th November, 2013. The delay of 146 days was calculated instead of the stated 427 days due to receiving the certified copy of the order on 23rd September, 2014. The reasons for delay were found sufficient, and the delay was condoned. The appeal was allowed to be registered if in proper form.Admitting the Appeal:An application was filed for admitting the appeal against the order dated 25th November, 2013. The appeal raised a substantial question of law regarding the Tribunal's dismissal of the miscellaneous application and the appeal without addressing the appellant's contentions. The appeal was treated as on the day's list and heard based on the stated question.Dismissal of Miscellaneous Application:The Tribunal had dismissed the appeal under Section 35F of the Act due to non-compliance with directions for pre-deposit of 50% of the duty. The appellant cited labor unrest causing payment inability. The appellant requested waiver of the pre-deposit, which was opposed by the respondent. The Tribunal had dismissed the miscellaneous application and the appeal due to non-payment.Waiver of Pre-Deposit:The appellant expressed readiness to deposit Rs. 35 lakhs within eight weeks. Consequently, the impugned order of 25th November, 2013 was set aside and quashed. The Tribunal was directed to hear the appeal within eight weeks after the deposit, without prejudice to the parties' rights. Failure to deposit within the stipulated time would revive the original order.Setting Aside the Impugned Order:Upon the deposit of Rs. 35 lakhs within eight weeks, the Customs, Excise and Service Tax Appellate Tribunal, Kolkata was instructed to hear the appeal promptly after granting a hearing to the parties. The Tribunal was advised not to be influenced by the current order's observations. The appeal and applications were disposed of, and the parties were allowed to communicate the order's essence for compliance purposes.