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Judgment
Mukesh R. Shah, J.—As common question of law and facts arise in both these petitions, they are being disposed of by this common judgment and order. By way of Special Civil Application No. 17714 of 2013 under Article 226 of the Constitution of India, the petitioner -original applicant has prayed for following relief:
B. Be pleased to quash and set aside impugned order No. M/14963-14964/2013 dated 21.10.2013 passed by the Hon''ble CESTAT, West Zonal Bench, Ahmedabad:
C. Be pleased to, as a consequence thereof, to direct the Hon''ble CESTAT, West Zonal Bench, Ahmedabad to restore main Appeal being No. E/1506/2010 and the allied Stay Application being No. E/S/1409/2010 on file or;
By way of Special Civil Application No. 17715 of 2013 under Article 226 of the Constitution of India, the petitioner -original applicant has prayed for following relief:
B. Be pleased to quash and set aside impugned order No. M/14963-14964/2013 dated 21.10.2013 passed by the Hon''ble CESTAT, West Zonal Bench, Ahmedabad:
C. Be pleased to, as a consequence thereof, to direct the Hon''ble CESTAT, West Zonal Bench, Ahmedabad to restore main Appeal being No. E/1507/2010 and the allied Stay Application being No. E/S/1410/2010 on file or;
The facts leading to the present Special Civil Applications in nutshell are as under:
3.1 The respective petitioners - original applicants submitted stay application in respective appeals as well as application for waiver of pre-deposit u/s 35F of the Central Excise Act. That the stay application/application for waiver of pre-deposit came to be disposed of by the First Appellate Authority vide order dated 2.8.2010 and directed that on deposit of 50% of the duty and penalty confirmed against each of them u/s 35F of the Central Excise Act within three weeks from the date of receipt of the order, failing which the appeal shall be liable for dismissal. It appears that thereafter Miscellaneous Application was preferred by the petitioner to modify earlier order dated 2.8.2010 and the learned First Appellate Authority modified its earlier order dated 2.8.2010 and directed to deposit 10% of duty and penalty confirmed u/s 35 of the Act within two weeks from the date of receipt of the order, failing which appeal shall be liable for dismissal. It appears that even order dated 7.9.2010 passed in Miscellaneous Application of depositing of 10% of the duty and penalty confirmed was not complied with and therefore, the First Appellate Authority dismissed both the appeals for non-compliance of provision of Section 35F of the Act.
3.2 Feeling aggrieved and dissatisfied with the order passed by the First Appellate Authority dated 30.9.2010 in dismissing the Appeals No. 1506-1507 of 2010 for non-compliance of the provisions of Section 35 of the Act, the respective petitioners preferred appeals before the learned Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT) along with stay applications. That at the time of hearing of the stay applications, nobody appeared on behalf of the petitioners and therefore, by order dated 4.10.2011, the learned Appellate Tribunal dismissed the stay applications for non-prosecution. The learned Appellate Tribunal also directed the Assistant Registrar to check up whether the compliance is as per provisions of Section 35F of the Act and list the matter for compliance on 17.11.2011. That thereafter by impugned order dated 17.11.2011, the learned Tribunal has dismissed the both the appeals for non-compliance with the provision of Section 35F of the Act. It appears that thereafter both the petitioners preferred restoration application before the learned Appellate Tribunal requesting to restore two appeals submitting that they could not appear before the Bench when the said petitions were listed for disposal on several dates due to the financial crisis faced by them. It was also submitted that their unit was taken over by the authority under the SARFAESI Act for non discharge of amount of loan taken by them. Therefore, it was requested to recall the order dated 17.11.2011 and requested to list the matter for hearing and dispose of on merits. By impugned common order, the learned Appellate Tribunal has dismissed both the restoration application. Hence, both the petitioners have preferred present Special Civil Applications for the aforesaid reliefs.
Shri Nikhil Kariel, learned advocate on behalf of the respective petitioners has submitted that as such at the time of hearing of stay applications before the learned Appellate Tribunal nobody could remain present on behalf of the petitioners as learned advocate withdrew his Vakalatnama and as such the petitioners were in acute financial crises. It is submitted that as such the possession of the unit was taken over by their bankers under the SARFAESI Act for non discharge of amount of loan taken by them. It is submitted that as such there was no mala fide intention on the part of the petitioners in not depositing of even 10% of the duty and penalty. Shri Kariel, learned advocate for the respective petitioners has stated at the bar under the instructions from his client that petitioners are ready and willing to deposit 15% of the duty and penalty confirmed and on such deposit, it is requested to direct the Commissioner (Appeals) to decide and dispose of the appeals on merits.
Shri I.H. Syed, learned Assistant Solicitor General of India has appeared on behalf of respondent. He has tried to oppose the present petitions by submitting that as such the order of pre-deposit was passed in the year 2011 and the appeals came to be dismissed for non prosecution in the year 2011 and the restoration applications were submitted in the year 2013 and therefore, the learned Appellate Tribunal has rightly dismissed the restoration applications. It is further submitted that if this Court is inclined to exercise the powers u/s 226 of the Constitution of India and consider the request made by the petitioners, it is requested to direct the petitioners to deposit a some more amount which is directed by the learned Commissioner (Appeals). Ultimately, he has left with the Court to pass an appropriate order.
Having heard the learned advocates for the respective parties and in the facts and circumstances of the case, more particularly, considering the fact that the unit of petitioners was taken over by the concerned authority under the SARFAESI Act and even at the relevant time they could not deposit even 10% of the duty and penalty confirmed and considering the fact that now the petitioners have shown their readiness to deposit 15% of the duty and penalty confirmed, we are of the opinion that one opportunity should be given to the petitioners to submit their case on merits before the First Appellate Authority.
Under the circumstances, both the petitions are disposed of and it is ordered that on deposit of 15% of the confirmed duty and penalty confirmed, by the petitioner of Special Civil Application No. 17714 of 2013 and on deposit of 15% of the penalty (Rs. 7 lakhs) by the petitioner of Special Civil Application No. 17715 of 2013 to be deposited within a period of four weeks from today as pre-deposit u/s 35F of the Act (agreed by the respective petitioners) and on production of receipt of the same within a period of one week from the date of such deposit, the learned Commissioner (Appeals) is directed to take up the respective appeals for hearing and thereafter decide and dispose of the Appeals No. E/1506 of 2010 and E/1507 of 2010 in accordance with law and on merits at the earliest and on such deposit balance duty and penalty confirmed shall be stayed during the pendency and final disposal of the aforesaid appeals by the Commissioner (Appeals). However, it is observed that if the aforesaid amount of 15% of the tax and penalty as stated above is not deposited, the Commissioner (Appeals) need not decide the appeals on merits and they shall stand dismissed for non-compliance of the pre-deposit u/s 35F of the Act automatically. With this, present Special Civil Applications are disposed of.