CARBORUNDUM UNIVERSAL LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) M /s. Carborundum Universal Ltd., had filed an appeal accompanied by an application for stay against the Order -in -Appeal upholding demand of duty of Rs. 86,009/ -, penalty of Rs. 86,009/ - and demand of appropriate interest. By an Order dated 8 -4 -2005 the appellants were directed to make a pre -deposit of Rs. 86,009/ - towards duty amount and to report compliance by 13 -5 -2005. Recovery of other dues as per the impugned order was waived subject to compliance with the above direction.

(2.) ON 13 -5 -2005 when the case was called to ascertain compliance it was seen that nobody representing the appellants was present. However, it was observed that "GAR -7 Proforma for Central Excise Tax Payments" was on record as per which Rs. 86,009/ - had been paid on 9 -3 -2005 with the remarks "under protest as pre -deposit". The party's appeal was dismissed for want of compliance with Section 35F of the Central Excise Act as deposit of an amount "under protest" cannot be accepted as due compliance with Section 35F. It was ordered that on expunging the remarks "under protest" from the relevant document, the appellants could move the Tribunal for restoration of their appeal.

(3.) TODAY , learned Counsel Shri CM. Kannan has appeared for the appellants and submitted that the payment of Rs. 86,009/ - had been made on 9 -3 -2005 with the endorsement on the GAR - 7 Proforma a month before the order for pre -deposit was made by the Tribunal. When the order for pre -deposit was made by the Tribunal the advocate was not able to inform the Tribunal about the deposit already made for want of instructions from the appellants. Moreover, as the payment was made with the remarks already it was not feasible to expunge the remarks from the challan. Learned Counsel for the appellants submits that the payment may be treated to have been made without protest. As per the directions in the order of the Tribunal they have filed the subject application for restoration of the appeal and requested that the appeal be restored.