2017 (3) TMI 464

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.... the condition to pre-deposit the disputed demand of penalty at the end etc. It was admitted filed on the following questions of law: (i) "Whether the Hon'ble Tribunal is justified not to recall the stay order dated 03.06.2009 when the stay cum waiver application was listed for hearing for the first time and inspite of the application filed by the appellants immediately after having the knowledge of the exparte order and the fact that the counsel did not appear on 03.06.2009 to press the stay cum waiver application inspite of giving assurance that he will be appearing and pressing the application? (ii) Whether the Hon'ble Tribunal is justified in observing that the appellants ought to have appeared on 03.06.2009....

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.... and its officers and Directors who have allegedly wrongly availed the Cenvat Credit have been exonerated from imposition of penalties by the settlement commissioner? (viii) Whether the Hon'ble Tribunal is justified in deciding the stay cum waiver application without taking into account the contentions of the appellants?" Also, Central Excise Appeal no. 70 of 2010 has been similarly filed against the order of the Tribunal dated 14.12.2009 whereby it has dismissed the assesse's appeal for non-compliance of the order on application for pre-deposit. Both appeals are being taken up together. We have heard Sri A.P.Mathur, learned counsel for the assessee and Sri Praveen Kumar, learned counsel for the department. It is t....

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....nder the Act has been taken away by the order passed by the Tribunal inasmuch as the order in original raises the exorbitant demand against the assessee and he has no right to challenge the same except by way of appeal which the Tribunal has dismissed due to non-compliance of the order passed on the waiver application. He further submits that while assessee had challenged the order passed on pre-deposit application in appeal no. 264 of 2009 the same was admitted by this court and the assessee was pursuing his remedy of appeal and that he could not be faulted for reason of ex-parte order passed on his waiver application. In this background, he prays for and offers to deposit the entire amount of penalty within a period of one month from t....