Salasar Steel and Power Ltd. vs Commissioner of C. Ex. and Cus.

Navin Sinha, Actg. C.J.�We have heard learned Counsel for the Appellant and the Respondent. The present appeal has been preferred against the order dated 15-9-2014 of the Customs, Excise and Service Tax Appellate Tribunal in Appeal No. 58697 of 2013 dismissing the Appeal upon failure to make pre-deposit and report compliance pursuant to order dated 11-7-2014 passed under Section 35F of the Central Excise Act, 1944 (hereinafter referred to as "the Act").

Learned Counsel for the Appellant submits that against the assessment made by the Commissioner, the Appeal was preferred in which orders for pre-deposit under Section 35F of the Act were passed for Rs. 10 Lacs by 15-9-2014. Prior to the same, the Appellant had filed an application on 22-8-2014 for rectification/modification of the order dated 11-7-2014. When the matter was taken up on 15-9-2014, the Office of the Tribunal did not place the application filed on 22-8-2014 on record and for that reason, the Tribunal dismissed the Appeal for non-compliance of the pre-deposit. The submission is that if an application had been filed for rectification/modification of the order before expiry of the last date for deposit, in all fairness, the application was required to be decided one way or the other and the Appeal could not have been dismissed in the manner done without disposing the aforesaid application.

Learned Counsel for the Respondent has opposed the Appeal. It is submitted that it is not the case of the Appellant that the order for pre-deposit was passed behind its back and without hearing. No such ground is urged. If the order dated 11-7-2014 was passed after considering all grounds urged by the Appellant with regard to pre-deposit, the occasion for filing an application for rectification/modification does not arise as it virtually seeks review of the order for which there is no statutory provision. He has also relied upon an order passed in Tax Case No. 48 of 2014.

We have considered the submissions on behalf of the parties.

The facts of the present case appearing to be slightly different that in Tax Case No. 48 of 2014.

If an application had been filed on 22-8-2014 for rectification/modification of the order dated 11-7-2014 before the last date fixed for compliance by pre-deposit on 15-9-2014, we are of the view that the application was required to be considered and disposed in accordance with law. The order states that the application was not on record. If the Office of the Tribunal did not place it on record, the Appellant cannot be faulted with.

We therefore of the considered opinion that the order in its present form with regard to the present Appellant is not sustainable. The order dated 15-9-2014 is set aside and the matter is remanded to the Tribunal to dispose of the Appellant''s application for rectification/modification dated 22-8-2014 at the earliest.

The Appellant shall place a copy of this order before the Tribunal within a maximum period of three weeks from today, failing which, the Tribunal shall be under no obligation to hear the application for rectification/modification and the Appeal shall stand dismissed.

At the risk of the repetition it is observed that the present order has been passed for procedural reasons. Nothing in the present order shall be deemed or construed either in favour of the Appellant or the Respondent. The discretion of the Tribunal with regard to the manner in which the application for rectification/modification is to be dealt with in law remains completely unhindered. The Appeal is allowed.