2008 (2) TMI 438

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....rs of pre-deposit. 2. The broad facts leading to filing of this petition are as under : 2.1 The petitioner, a partnership firm, was engaged in the business of importing various vessels/ships and breaking them at Alang Ship Breaking Yard. The petitioner brought four vessels for breaking during period from 1991 to 1996. On filing bills of entries. Central Excise and Customs Department had made assessment and the demand for differential duty was confirmed. 2.2 Aggrieved by the order dated 30-3-2001 passed by the Deputy Commissioner, Central Excise, Bhavnagar, the petitioner preferred appeals before the Commissioner of Central Excise (Appeals) along with stay applications. When those stay applications came up for hearing, the Commissioner (A....

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....2-10-2006 stands recalled and the delay condoned. It is also made clear that the balance amount of duty, and penalty if any, as per order dated 25-6-2002 be paid within two weeks from today. If the petitioner pays the balance amount of duty within two weeks, the review petition also stands allowed." 4. There is no dispute about the fact that the petitioner paid the balance amount of duty within two weeks. Accordingly, the review petition stood allowed and the present petition has now reached hearing before us. 5. Mr. P.J. Malkan, learned Standing Counsel for the respondents has raised a preliminary objection that in similar matters, this Court has taken the view that when writ petitions are filed for challenging the orders passed by the ....

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....ecession prevailing in the ship-breaking industry on account of which Shri Ashok N. Patel, who was the only person handling the firm, was compelled to wind up the business and start a new business of building and road contractors on account of which, he was required to stay outside Bhavnagar for work for very long periods and rarely visited Bhavnagar and the firm's office at Bhavnagar remained closed and all employees had to be retrenched. The order dated 25-6-2002 appears to have been delivered to some other office in the building and the applicant had no knowledge of the same. It appears that thereafter a notice dated 21-4-2003 was also delivered to some other office in the building and was handed over to Shri Patel at his residence much ....

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....came to be deposited only thereafter, during pendency of proceedings before this Court. A perusal of the above explanation would indicate that the petitioner had not abandoned his right to challenge the orders of the Commissioner (Appeals) and the subsequent conduct on the part of the petitioner in depositing the entire 90% amount as per the pre-deposit orders of the Commissioner (Appeals) also indicates bona fides of the petitioner. 10. We are of the view that since for the reasons aforesaid, the matters are required to be remitted back to the Commissioner (Appeals) for deciding the appeals on merits in view of compliance by the petitioner with the direction for pre-deposit of 90% of the duty amount, no further discussion is warranted as ....