The Court: By the order under challenge the learned Tribunal dismissed the appeal on the ground of limitation. Prayer for condonation of delay was rejected. The order under challenge before the Tribunal was dated 22nd December, 2000, which is as follows:
“The abovenamed appellant has filed the instant appeal petitions alongwith the application for stay of pre-deposit against the Order-in-Original bearing No. 10.Ch.39.Addl. Commr/CE/Cal-II/99 dt. 11.5.99, passed by the Addl. Commissioner of C.Ex, Cal-IV Comm'te wherein the said adjudicating authority confirmed demand/RF/penalty as under:-
Demand Rs. 17,56,079.43
Penalty Rs. 15,00,000.00
On scrutiny of the appeal petition, it is apparent that on merits, the balance of convenience is in favour of ‘Revenue’. On the question of financial hardship no substantial ground has been projected in the stay petition to consider waiver pre-deposit of the amount in question. The appellant therefore, ought to have pre-deposited the said amount before preferring the appeal.
The case was taken up for decision and was posted for hearing on 24.4.2000 However, the appellant did not appear before the appellate authority when the case was posted for hearing. The appellant also either did not appear or prayed for adjournment on the subsequent dates when the case was posted for hearing on 19.5.2000, 28.8.2000, 28.9.2000 & 28.11.2000
As the proceedings cannot be kept pending for an indefinite period, and as the appellant have failed to pre-deposit the amount in question imposed on them vide the impugned order, I have no option but to dismiss the appeals for non-compliance of the provisions of Sec.25F of the C.Ex Act.”
It would appear that the order dated 22 December, 2000 was passed on two grounds, viz. (a) that the appellant did not appear, and (b) the deposits were not made under section 25F of the Central Excise Act. Mr. Khaitan submitted that no order was passed in the stay application requiring the appellant to make the deposit. According to him, without passing a peremptory order directing the appellant to put in the money, the order dated 22 December, 2000 straight away proceeding to dismiss the appeal should not have been passed which has resulted in violation of the principles of natural justice. The order dated 22 December, 2000 was sought to be reviewed, but the prayer for review was not granted.
There is some substance in the submission made by Mr. Khaitan, but the fact remains that the appellant has successfully avoided the liability to pay the sum of Rs. 32,56,079.43p for more than 12 years. Therefore, no effective relief can be granted without first securing the aforesaid sum. In the premises, the following order is passed.
In the event, the appellant deposits the said sum of Rs. 32,56,079.43p. the appeal shall be heard on merits by the Commissioner (Appeal), Central Excise, Kolkata. In depositing the said sum, the appellant shall be entitled to take benefit of the amount lying to his credit in his CENVAT Account and the balance amount shall be deposited within three months from date. After such deposit is made, the appeal will be heard and the order under challenge passed by the Tribunal shall stand set aside. In the event, the deposit is not made within the time stipulated herein, this appeal shall stand dismissed. The appeal is thus disposed of.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
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