MEENAKSHI CASTING (P) LTD. Vs. UNION OF INDIA

JUDGEMENT

(1.) The Customs, Excise & Service Tax Appellate Tribunal while entertaining the appeal of the petitioner passed an order dated 2-11-2007 directing the petitioner to deposit a sum of Rs. 1 lac within six weeks as a precondition for entertaining the appeal. The petitioner, in terms of the said order, deposited the amount on 5-3-2008 without seeking extension of time. Since the amount was not deposited within the prescribed period, the Tribunal by an order dated 17-1-2008 dismissed the appeal. The petitioner filed a recall application, which was rejected by an order dated 28-5-2010. The petitioner, being aggrieved, has filed the present writ petition which was duly entertained. A preliminary objection was raised by Sri Amit Mahajan, learned counsel for the Central Excise Department contending that the writ petition is not maintainable inasmuch as an appeal lies under Section-35G(2) of the Act.

(2.) Having perused the said provision, we are of the opinion that even though the appeal should have been filed but by not filing the appeal the petitioner cannot be non suited on this ground, inasmuch as, the appeal would also be filed before the same High Court and would have been dealt with by the same Bench. Further, we find that the limitation for filing an appeal before High Court is 180 days from the date of the order of the Tribunal and prior to the expiry of the said date the writ petition was filed. Consequently, the objection raised by the department is overruled.

(3.) During the pendency of the writ petition, the petitioner has deposited the entire excise duty demanded by the authority, namely, a sum of Rs. 3,30,000/-. Considering this fact and considering the fact that the pre-deposit of Rs. 1 lac had been deposited belatedly, we are of the opinion that in the interest of justice the appeal of the petitioner should be heard by the Tribunal on merits. We, accordingly set-aside the impugned orders dated 17-1-2008 and order dated 28-5-2010 passed by the Tribunal with the direction that the Appellate Tribunal will decide the appeal of the petitioner on merits after hearing all the concerned parties within a period of six months from the date of production of a certified copy of this order.