S.M. INTERNATIONAL Vs. CESTAT

JUDGEMENT

(1.) The appeal of the Petitioner herein against the adjudication order was dismissed by the Commissioner (Appeals) on 23 -3 -2004. According to the Petitioner this order was not received by him even when he sent various communications to the Department for supplying the copy of the said order. The appeal is on the ground that as the Petitioner did not receive copy of the said order, he could not comply with the same and pay the duty. After the dismissal of the appeal, revenue issued a recovery notice in which interest for non -payment of duty was also claimed. Against this order, the Appellant filed the appeal which was also dismissed. Petitioner thereafter filed an appeal before Customs Excise and Service Tax Appellate Tribunal which is pending before the Tribunal. Petitioner also moved an application for waiver of pre -deposit amount of interest. Since the duty has been paid, the only dispute is whether the interest is payable or not. The case of the Petitioner is that since the copy of the adjudication order passed in 1999 was not given to him and was received by him only on 30 -12 -2003, the Petitioner is not liable to pay interest for the intervening period. In support of this plea, Petitioner has alongwith this writ petition filed various documents. The Tribunal has, however, dismissed the stay application of the Petitioner seeking waiver of the pre -deposit. The reason given is that the Appellant had not challenged the order passed by the Commissioner (Appeals) vide which their appeal was dismissed. The submission of the Petitioner, however, is that even if that order is not challenged and the Petitioner had agreed to pay the duty, the main grievance was that for the period when the Petitioner was not in possession of the copy of the order, the Petitioner is not bound to pay interest. On our query to the learned Counsel for the Petitioner, he was candid in admitting that this aspect was specifically raised in the appeal before the Commissioner (Appeals). We find from the perusal of the order dated 23 -3 -2004 passed by the Commissioner (Appeals) that the appeal which was filed by the Petitioner contains so many deficiencies and therefore letters were written to remove those deficiencies. Even after giving the final reminder dated 19 -2 -2004 asking Petitioner to remove all the deficiencies within 7 days, when the same were not removed, the Custom (Appeals) dismissed the appeal for non -prosecution. The Commissioner (Appeals) also observed that prima facie the appeal was hopelessly time barred. In making this observation, naturally the Commissioner (Appeals) took into consideration order -in -original passed on 30 -3 -1999. Even the submission of the Petitioner is that this order was received late and from the date of the receipt of the order, appeal was filed within time, it was necessary for the Petitioner to challenge the order dated 23 -3 -2004. Therefore, we are of the opinion that on a valid ground given by the Tribunal waiver of the receipt of the pre -deposit is not accepted. In such circumstances, we are also of the opinion that Petitioner has not been able to make out a case of undue hardship.

(2.) Dismissed.

(3.) We make it clear that if the Petitioner deposits the amount and the appeal is heard by the Custom Excise on merits, the Tribunal shall not be influenced by the observation made in this order which are tentative in nature and are made keeping in view the fact that this petition relates only to pre -deposit.