Bakul Chemicals (P.) Ltd. vs Union of India

Akil Abdul Hamid Kureshi, J.—Heard learned counsel for the parties for final disposal of the petition. Petitioners have challenged three separate orders passed by the CESTAT in following factual background.

Against the order in original passed by the Commissioner, the petitioners preferred an appeal before CESTAT. In such appeal, the petitioners also filed petitions for stay/pre-deposit waiver. Such petitions came to be dismissed by order dated 17.10.2011 for non-prosecution. The petitioners therefore had to deposit the entire amount confirmed in the order in original by way of pre-deposit in terms of section 35F of the Central Excise Act, 1944. To secure compliance, the Tribunal granted time up to 21.11.2011.

On 21.11.2011, finding that there was no compliance and also that there was no representation on the part of the petitioner, the Tribunal dismissed the appeal of the petitioner. Thereupon, the petitioners preferred restoration application which also came to be dismissed by the Tribunal by the impugned order dated 6.3.2013. In such order also, the Tribunal expressed the opinion that sufficient opportunities were given to the petitioner for arguing the stay petitions which opportunities were not availed.

Learned counsel for the petitioner candidly stated that the petitioners have no legal contentions to make for the default on their part or on the part of the representative to appear before the Tribunal. He, however, pleaded that sizeable duty demand of more than Rs. 64 lakhs would be confirmed without contest on merits if the petitioners are not given an opportunity to appear before the Tribunal and present their case.

Learned counsel Shri Bhatt for the respondents, however, submitted that the petitioners deserve no further indulgence.

We are conscious that the Tribunal had given sufficient opportunities to the petitioners to appear and argue their stay petitions on merits. Such opportunities were not availed. However, looking to the sizeable amount of duty demand which was confirmed in the order in original and its overall impact along with penalties and interest, on certain suitable condition of imposing cost, we are inclined, as a special case, to enable the petitioners to appear before the Tribunal and argue their stay petitions on merits. Under the circumstances, the impugned orders dated 17.10.2011, 21.11.2011 and 6.3.2013 are set aside. The petitioners'' stay petitions before the Tribunal are revived. They shall appear before the Tribunal on 1st May 2013 without any separate notice. We clarify that this date is fixed only by way of a preliminary date and it is entirely upon the discretion of the Tribunal to refix the date. If the petitioners fail to appear on 1st May or on any subsequent dates which the Tribunal may fix, it would be open for the Tribunal to ignore their presence and pass appropriate order without any further warning. The above order shall take effect only after the petitioners deposit a sum of Rs. 15,0007- (Rupees fifteen thousand only) with the Gujarat State Legal Services Authority, which shall be done latest by 26th April, 2013 and produce proof thereof before the Tribunal at the time of first hearing. The petition stands disposed of accordingly.