NANDKISHORE STEEL INDUSTRIES PVT. LTD. Vs. CESTAT

JUDGEMENT

(1.) HEARD Shri Jaiswal, learned counsel for the appellant and Shri Mishra, learned ASGI for Respondent No. 2. In this appeal filed under Section 35G of the Central Excise Act, 1944, (hereinafter referred to as the Act) an order passed earlier on 30 -7 -2012 on stay application, directing the appellant to deposit 25% of the duty as pre -deposit under Section 35F thereof as also a final order dated 15 -10 -2012, dismissing the appeal itself, for not complying with it are questioned.

(2.) IN order to demonstrate how Customs, Excise and Service Tax Appellate Tribunal (CESTAT) ought to have applied its mind, while considering the application under Section 35F of the Act, the learned counsel for the petitioner has placed reliance upon the judgment of the Hon'ble Apex Court in the case of Benara Valves Ltd. v. Commissioner of Central Excise, reported at : (2006) 13 SCC 347 : 2006 (204) E.L.T. 513 : 2008 (12) S.T.R. 104 and the Division Bench judgment of this Court in the case of Universal Ferro and Allied Chemicals Ltd. v. Customs, Excise and Service Tax Appellate Tribunal, reported at : (2004) 3 Mh. L.J. 219. He contends that the impugned order shows total non -application of mind qua material placed on record and hence there is refusal to exercise jurisdiction. Merely because in case of other unit, in somehow similar circumstances, the High Court directed deposit of 25% of duty amount, that direction has been extended even to the case of the present appellant. He submits that unit of the present appellant is already closed and taken over by the financial institution. The effect flowing therefrom is totally lost sight of by the CESTAT in the impugned order. As the impugned order dated 30 -7 -2012 shows total non -application of mind, it deserves to be set aside.

(3.) THE appellant was given time till 15 -10 -2012 to comply with it and as the same was not met by then, consequently appeal itself is dismissed on 15 -10 -2012. As the order dated 13 -7 -2012 is not sustainable, the later order is automatically rendered bad and hence a case for remand is made out. He states that the appellant has moved an application under Section 35F of the Act and for its proper consideration, appeal needs to be restored.