ROSHAN MINOO IRANI Vs. UNION OF INDIA

JUDGEMENT

(1.) Rule : Rule is made returnable forthwith. By consent of both the parties, both the petitions are taken up for final hearing.

(2.) In these petitions, the petitioners have challenged order dated 18-9-2008 [2009 (238) E.L.T. 702 (Tri.- Mumbai)] passed by the Customs, Excise and Service Tax Appellate Tribunal. It appears that by the order-in- original dated 19-12-1997, the Commissioner of Central Excise confirmed a demand of Rs. 39,53,517/- against M/s. Unique Enterprises, a proprietary concern of Shri F.M. Irani, the petitioner in Writ Petition No. 403 of 2009 and imposed penalties of Rs. 50 lakhs on the proprietor and a penalty of Rs. 10 lakhs on the petitioner in Writ Petition No. 401 of 2009. The petitioners filed appeals before the tribunal. An application was made for withdrawal of the appeals so as to approach the Settlement Commission as per the provisions of Section 35PA of the Central Excise Act, 1944. Permission was granted and the appeals were dismissed as withdrawn vide order dated 1-1- 2004. Admittedly, vide final order dated 23-12-2005, the Settlement Commission rejected the application of the petitioner under sub-section (7) of Section 32F on account of non-cooperation by the applicants and the matters were sent back to the tribunal for disposal in accordance with the provisions of the Act. In May 2008, the petitioner filed applications before the tribunal for restoration of the appeals, which were dismissed as withdrawn. By the impugned order, the applications for restoration of appeals have been dismissed and hence these writ petitions.

(3.) We have heard learned counsel for the petitioner and learned counsel for the respondents. Having regard to the fact that the appeals originally filed were filed in time, though there is lapse on the part of the petitioner in moving the tribunal after the final order passed by the Settlement Commission, in the interest of justice, we are of the opinion that the petitioner must be given an opportunity to challenge the order-in-original.