TaxTMI 
TaxTMI 
2010 (9) TMI 202
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.... Service Tax Appellate Tribunal, West Zonal Bench at Mumbai ("Tribunal" for short) whereby and whereunder the appeal filed by the appellant was dismissed for noncompliance of the order directing pre-deposit in the sum of Rs. 3 crore under Section 35F of the Central Excise Act, 1944 ("Act" for short). The Facts : 3. The facts giving rise to the present appeal relevant to the issue involved, in nutshell, are as under : 4. The appellant herein is a 100% EOU engaged in the manufacture of various yarn products attracting central excise duty under the Central Excise Tariff Act, 1985. The appellant submitted an application for permission to sell yarn produced by it in DTA to Development Commissioner, SEEPZ which was granted to....
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....mitted written submission dated 22nd February, 2005 to the Commissioner, Central Excise (Adj.) resisting the show cause notice dated 25th July, 2003. 8. The Commissioner of Central Excise adjudicated and confirmed the show-cause-notice vide order-in-original dated 12th August, 2005 and demanded duties of excise equivalent to the aggregate duties of customs under proviso (i) to Section 3(1) of the Central Excise Act, 1944 to the extent of Rs. 3,73,82,248/-. 9. The appeal filed to the Tribunal against the aforesaid order resulted in remanding the matter to the Commissioner of Central Excise for consideration afresh vide order dated 25th August, 2006. 10. On remand, impugned order-in-original was passed by the Commis....
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....t of the Tribunal to wait till the order of this Court deciding question of pre-deposit. That the Tribunal was, thus, not justified in dismissing the appeal for non-compliance of the order of pre-deposit. He, thus, submits that the impugned order dismissing appeal be set aside and the appeal be restored to the file of the Tribunal. In addition to this, it is also urged that the order dismissing appeal was in breach of principles of natural justice as such impugned orders are void ab initio. 14. Mr. Desai, learned senior counsel appearing for the respondents- Revenue vehemently opposed the aforesaid submission made by learned counsel for the appellant. He urged that Writ Petition No. 2195/2009 was filed on 7th November, 2009 and the....
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....w is involved in the appeal warranting consideration thereof. He, thus, prayed for dismissal of appeal in limine with heavy costs. Consideration : 18. Having heard rival parties, in our considered view, Mr. Desai is justified in contending that no substantial question of of law is involved in this appeal. 19. The undisputed facts are that order of pre-deposit was passed on 3rd September, 2009 which was to be complied with within a period of 8 weeks i.e. on or before 9th November, 2009. Whereas writ petition challenging the order of pre-deposit was filed on 7th November, 2009 i.e. just two days before the expiry of time granted to comply with the order of pre-deposit. No steps were taken by the appellant to get the petit....
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.... its own facts. Where there is appearance of avoidable delay and this delay affects the merits of the claim, this Court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction." (Emphasis supplied) 21. In the instant case, the appellant appears to have calmly abandoned or at any rate put into cold storage his writ remedy under Article 226 of the Constitution of India. There is no explanation from the appellant as to what prevented them from getting their petition circulated before the Court and obtain appropriate orders. In the circumstances, it cannot be said that the appellant is not guilty of gross delay in pursuing the writ remedy that was open to them in the first place. In ....