Shelly Ispat Udyog vs Commissioner of Central Excise

Rajive Bhalla, J.—Allowed as prayed for.

C.M. No. 3185-CII of 2013

C.M. No. 3186-CII of 2013

Prayer in this application is to condone delay of 146 days in filing the appeal.

Counsel for the applicant/appellant submits that the applicant/appellant filed C.W.P. No. 19090 of 2012 (wrongly referred to as 2011), challenging the impugned order. The writ petition was dismissed as withdrawn with liberty to the applicant to file an appeal. The delay occasioned on account of filing of the writ petition may be condoned.

Counsel for the respondent states that filing of the writ petition cannot be considered as sufficient cause to condone delay of 146 days in filing the appeal.

We have heard counsel for the parties and as sufficient cause has been shown, allow the application and condone delay of 146 days in filing the appeal.

C.E.A. No. 7 of 2013

The appellant prays for setting aside order dated 09.02.2012, passed by the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as the ''C.E.S.T.A.T.''), New Delhi.

Counsel for the appellant submits that similar matters arising from the same impugned order have already been decided in Victory Impex v. C.C.E., C.W.P. No. 8433 of 2012 on 31-5-2012, by modifying the impugned order. The same relief may be granted to the appellant.

Counsel for the respondent despite his attempt to urge to the contrary, is unable to distinguish the order relied by counsel for the appellant.

We have heard counsel for the parties. The impugned order has already been modified in C.W.P. No. 8433 of 2012 Victory Impex (supra), decided on 31-5-2012, by holding as follows:--

Accordingly, it is held that the Tribunal was not right in ordering that the appeal of the petitioner shall stand automatically dismissed in case the amount by M/s. VAL as directed by the Tribunal is not deposited. In other words, the appeals filed by the petitioners, irrespective whether the amount is deposited by M/s. V.A.L. Ltd. or not, shall be heard on merits as the Tribunal had already granted waiver from pre-deposit in the case of the petitioners.

In view of what has been recorded hereinabove, the appeal is allowed, the impugned order dated 9-2-2012, passed by the C.E.S.T.A.T., is modified to the extent as indicated in order dated 31-5-2012, passed in C.W.P. No. 8433 of 2012 Victory Impex (supra).