WHITE SILCO PVT. LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioner M/s. White Silco Private Limited is a small unit. Show cause notices dated 18 -12 -1998 and 3 -2 -1999 were issued by the Superintendent to the petitioner demanding differential duty of Rs. 2,62,942/ - for the period from June to December, 1998. The Deputy Commissioner of Central Excise, Bhavnagar confirmed the said demand of Rs. 2,62,942/ - and imposed penalty of Rs. 40,000/ - by an order dated 20 -12 -1999 which was upheld by the Commissioner (Appeals) by his order dated 19 -3 -2001. Having heard on the application for waiver of deposit of duty of Rs. 2,35,000/ - and having considered the financial hardship of the petitioner, the Customs, Excise and Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai ('CEGAT' for short) by its order dated 21 -1 -2002 (Annexure -B) directed the applicant petitioner to deposit Rs. 1 lakh within one month from the date of receipt of the order. Thus, the petitioner was supposed to deposit amount of Rs. 1 lakh by 21 -2 -2002. Instead the petitioner had deposited only Rs. 50,000/ - on 18 -2 -2002 by challan at Annexure -C and simultaneously applied before the CEGAT for extension of time to deposit further amount of Rs. 50,000/ - by first week of April, 2002 (Annexure -D). As stated in this petition in Para 3.6, the time to deposit remaining amount of Rs. 50,000/ - was granted till 10 -4 -2002. However, meanwhile, communal riots broke out in Gujarat. Therefore, the petitioner could not deposit remaining amount of Rs. 50,000/ - before 10 -4 -2002. Hence, for non -compliance of the pre -deposit order dated 21 -1 -2002 (Annexure -B) passed by it on earlier occasion, the CEGAT had dismissed the appeal of the petitioner by its impugned order dated 30 -4 -2002 [2002 (142) E.L.T. 674 (Tribunal)] (Annexure -E).

(2.) IT is the case of the petitioner that as soon as it received the impugned order at (Annexure -E) dismissing its appeal for non -compliance of pre -deposit order, at the first instance, the petitioner had deposited remaining amount of Rs. 50,000/ - by challan on 1 -7 -2002 (Annexure -F) and submitted an application dated 5 -7 -2002 (Annexure -G) before the CEGAT for restoration of its appeal and decide the same on merits. However, the CEGAT rejected the said application of the petitioner by its impugned order dated 10 -6 -2003 (Annexure -A) mainly on the ground that it was not aware about the judgment of any court which says that the appeal has to be restored whenever any person deposits the amount. If that was to be accepted, then there was hardly any point in passing conditional pre -deposit stay order and, the order passed by the Tribunal in case of Sunil Kumar Ghosh v. CC - 2002 (149) E.L.T. 954 (Tri.) = 2002 (53) RLT 103 was not relied on the ground that it was passed on facts of that case. Hence, this petition.

(3.) IN view of the peculiar facts of this case and in view of the aforesaid two binding judgments of this Court, Mr. Malkan, learned Standing Counsel for the respondents, was hardly in a position to oppose this petition.