AI Structured Summary
Not yet generated for this judgment
Judgment
Learned counsel for the appellant tenders affidavit of Advocate Mr. Anand S. Kulkarni, who had appeared before the CESTAT on 3 July 2013 and sought adjournment. In the affidavit, Advocate Kulkarni points out that on 3 July 2013 the appeal of the appellant was on board of CESTAT for purpose of reporting compliance of the order dated 14 May 2013. At that time he pointed out to CESTAT that the appellant has challenged the order dated 14 May 2013 before this Court and though originally listed on 2 July 2013, the appeal had been placed by this Court for hearing on 3 July 2013. Therefore, Advocate Mr. Kulkarni prayed that the Appeal of the appellant which was on board to report compliance with pre-deposit order dated 14 May 2013 be adjourned so as to await the result of its appeal before the High Court which was fixed for admission on 3 July 2013. However, in spite of the aforesaid fact having been brought to the notice of the CESTAT when the matter was called out and also having brought it to the notice of the registry of the Tribunal by letter dated 2 July 2013, the CESTAT insisted on the appellant reporting compliance and on failure to do so, dismissed the appeal for non-compliance of stay order dated 14 May 2013.
It is most unfortunate that the CESTAT dismissed the appeal for non-compliance of the order dated 14 May 2011, inspite of the aforesaid facts being brought to the notice of the CESTAT. In all fairness to the appellant and deference to this Court, CESTAT ought to have awaited the result of the hearing of appeal before this Court which was fixed on 3 July, 2013 itself. An adjournment by a couple of days in the above circumstances would have been in the interests of justice besides avoiding multiplicity of proceedings.
We regret to state that it appears that this is not the first time such a situation has arisen. In Jai Prakash Strips Ltd. v. Union of India, 2009 (243) E.L.T. 341 (Bom.), the Division Bench of this Court was constrained to make the following observations:-
One additional fact in this case is that appeal was dismissed when the matter was pending before this court by the Tribunal even when its attention was brought to the fact inspite of that the appeal was dismissed. We are aware that it is open to the Tribunal to dismiss an appeal for noncompliance. We are also aware of the fact that it is open to the Tribunal in the absence of pre-deposit by the stipulated date to dismiss the appeal. However, when a party brings to the notice of the Tribunal that an appeal is preferred and is pending judicial exercise to avoid multiplicity of proceedings, would be to grant reasonable time to enable the petitioner to produce an order from this court, and on failure to do so proceed with the matter. Ultimately, the Tribunal is subject to the supervisory jurisdiction of this court.
Considering the above facts, the order of dismissal of appeal is set aside. The order of pre-deposit is varied to the extent that the amount already deposited would be considered as pre-deposit. The Tribunal is directed to hear the appeal on merits.
In view of the above, we permit the appellant to amend the memo of appeal challenging the order dated 3 July 2013 passed by the CESTAT. The amendment shall be carried out within 10 days.
In view of the above, we grant stay of the order dated 3 July 2013 of the CESTAT dismissing the appeal of the appellant being Appeal No. ST/85239/2013-MUM and also grant ad-interim stay of the order dated 17 October 2012 of the Commissioner (Appeals), Central Excise, Pune-III, confirming the imposition of service tax by the Order-in-Original No. STC/PIII/119/ADC/2011-12 dated 30 March 2012 of the Addl. Commissioner, Central Excise, Pune-III.
This ad-interim order shall operate till further orders.
Place this appeal on 18 July 2013. In the meantime, the registry of the CESTAT shall forward copy of the order dated 3 July 2013 to the registry of this Court at the earliest. Learned counsel for the appellant shall serve copy of this order duly authenticated by the Court Associate on the registry of the Tribunal.