TaxTMI 
TaxTMI 
2008 (1) TMI 866
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....ction (ACP) of re-rolling mill. (ii) On 21-8-1997, the petitioner sent a representation to the Commissioner, Central Excise informing its willingness to avail the scheme, as prescribed under Rule 96ZP of the Central Excise Rules. (iii) Accordingly, the Commissioner, by the order dated 23-2-1998 fixed the ACP in respect of the petitioner's factory at 4930.864 MTs. (iv) Thereupon, the petitioner moved the High Court challenging the validity of Section 3A of the Act. (v) In that writ petition an interim order was passed. In pursuance of the said interim order, petitioner calculated its actual production for the period from September, 1997 to August, 1998 at 1583.55 MTs. And discharged its liability by making the payment towards the Excise Duty. (vi) On 22-9-1998, the petitioner sent another representation to the Commissioner of Excise disputing the ACP fixed by him by the order dated 23-2-1998, thereby requesting the Commissioner to refix the ACP. (vii) The said representation was rejected by the Commissioner on 9-12-1998. (viii) Thereupon, the petitioner filed an appeal before the....
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....ion the various orders passed by this High Court as well as Supreme Court. The Tribunal also did not apply its mind while directing pre-deposit of Rs. 17 lakh nor was it justified in refusing to recall its order dated 26-5-2004 and without adjusting the amount paid earlier. Both authorities have failed to adjust the amount already paid by the assessee and failed to take into account the refund due to the assessee. Thereupon, on 3-8-2004, the Tribunal simply dismissed the appeal without considering the orders. Therefore, the orders passed by the authorities on various dates are wrong." 4. In reply to the above submissions, Dr. J.P. Gupta, learned counsel appearing for the respondents has submitted :- "Against the order dated 4-9-2003 an appeal has been filed before the Tribunal and the Tribunal while entertaining the appeal, followed the provisions of Section 35F of the Central Excise Act and passed a conditional order of stay dated 26-5-2004 directing the petitioner to deposit Rs. 17 lakh out of the duty demanded pending disposal of the appeal and therefore, the merits of the matter could be argued before the Tribunal after complying with the conditions imposed by the Tr....
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....it would be relevant to quote Section 35F of the Central Excise Act :- 35F. Deposit, pending appeal of duty demanded or penalty levied.- Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded 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 where in 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. 13. Taking into consideration the Section 35F, the Tribunal entertained the appeal and as against the payment of total amount of Rs. 22,11,043/- directed the petitioner to make a pre-deposit of Rs. 17 lakh. Therefore, it cannot b....
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....ation provisions of the Section 35F, the Tribunal has passed conditional order of stay. 16. It is pointed out by the counsel for the respondents that, in a similar facts of the case, a writ petition was filed before the Delhi High Court challenging the order of the Tribunal CEGAT granting partial stay on conditional deposit while dealing with the application for waiver of the pre-deposit and also the subsequent order dismissing the appeal for non-compliance of such order as the amount directed to be deposited was not deposited within the time frame. The Delhi High Court finally decided the issue which is reported in 2002 (143) E.L.T. 515 (Del.) [Raju Metal Industries v. Union of India] by holding that in these cases there is little scope for the High Court to interfere, especially the conditional deposit was directed to be made under Section 35F and dismissed the writ petition directing the CEGAT to allow the petitioner to make the requisite deposit by giving some more time. 17. The above said judgment was challenged before the Supreme Court. The Supreme Court, ultimately, dismissed the Special Leave Petition by the order dated 11-12-2000. This also has been reporte....
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....ration some certificates as these were not produced before the adjudicating authority, and were obtained much after adjudication of the case. Taking into account Financial situation of the petitioner and the extent of turnover, direction was given to deposit Rs. 25 lakhs.   3. In cases of this nature there is little scope for interference, particularly when appeal has already been dismissed for non-compliance with the direction for deposit. Tribunal has taken note of the relevant facts and directed to deposit Rs. 25 lakhs. We do not find any reason to interfere with the conclusions. However, if the deposit is made by 9th February, 2001, and this aspect is brought to the notice of the Tribunal, it would do well to restore the appeal for disposal on merits.   4. The petition stands disposed of accordingly. [Reported in 2002 (143) E.L.T. 515 (Del.) (Raju Metal Industries v. Union of India)] (ii) The observation made by the Supreme Court is as follows :- &....