KAMRUP INDUSTRIAL GASES LIMITED Vs. CEGAT

JUDGEMENT

(1.) This writ petition has been filed for quashing the order dated 2.8.2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, respondent No. 1.

(2.) The petitioner is engaged in the manufacture of goods falling under Chapters 28, 29 and 84 of the Central Excise Tariff Act, 1985. It appears that the petitioner approached the Tribunal against the order passed by the Commissioner (Appeals) Allahabad. Under Section 35-F of the Central Excise Act, the petitioner applied for grant of waiver to deposit the disputed amount of duty as a condition for hearing of the appeal. The Tribunal by order dated 14th December 1998 directed the petitioner to deposit rupees one lac as against the demanded duty on or before 3lst January 1999. Subject to compliance the balance amount was dispensed with and recovery proceedings were stayed during the pendency of appeal. The petitioner failed to deposit the aforesaid amount of rupees one lac on or before 31st January 1999. The Tribunal by order dated 16.2.1999 dismissed the petitioner's appeal for non-compliance of the provisions of Section 35-F of the Central Excise Act. It appears that the petitioner had also filed another appeal raising the same controversy before the Tribunal. The Tribunal allowed the said appeal, as a result the amount deposited by the petitioner in another appeal became refundable. The department instead of refunding the said amount to the petitioner adjusted the same towards the outstanding dues, which was the subject-matter of present appeal, which was dismissed by the Tribunal by order dated 16th December 1999.

(3.) The petitioner thereafter filed an application for restoration of the above appeal on the ground that since now the duty has been realized by the department by way of adjustment, the condition of Section 35-F stands complied with and appeal may be heard and decided on merits. The said application was filed on 17th May 2001 and was dismissed by the Tribunal by Misc. Order No. 10/01-C. The application was dismissed on the ground that there was no material before the Tribunal to show that any amount was deposited earlier when it became refundable.