G. Rohini, J. - (1.) THE petitioner company is engaged in the manufacture of cotton yarn and cotton waste. By order dated 9 -1 -2007 the Commissioner of Customs and Central Excise, Guntur, determined the liability of the petitioner to pay the duty specified therein apart from the penalty. Aggrieved by the said order, the petitioner preferred an appeal under Section 35B of the Central Excise Act, 1944 (for short, 'the Act'), before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Bangalore, along with an application for waiver of pre -deposit of duty and penalty. By order dated 31 -1 -2008 the CESTAT while granting the waiver of pre -deposit of duty remanded the matter to the Commissioner for de novo enquiry. Accordingly, a fresh order dated 30 -12 -2008 came to be passed by the Commissioner. Against the said order, the petitioner had again preferred an appeal before the CESTAT along with an application for waiver of the pre -deposit of duty. The petitioner also sought stay of operation of the order of the Commissioner dated 30 -12 -2008. The CESTAT by order dated 30 -11 -2011 directed the petitioner to pre -deposit 50% of the entire amount of duty demanded within six weeks making it clear that subject to such deposit there will be waiver of pre -deposit and stay of recovery in respect of the penalties imposed and the balance amount of duty. The compliance was directed to be reported to the Bench on 8 -3 -2012. Having found that compliance of the order dated 30 -11 -2011 with regard to pre -deposit was not reported, the CESTAT by order dated 28 -5 -2012 rejected the petitioner's application for waiver and consequently the appeal was also dismissed for want of compliance with Section 35F of the Act. Aggrieved by the same, the present writ petition is filed seeking a declaration that the order of the CESTAT, dated 30 -11 -2011 as well as the consequential order dated 28 -5 -2012 are arbitrary and illegal. It is alleged in the writ petition that the order of the CESTAT dated 30 -11 -2011 was an ex parte order and that it was not communicated at all to the petitioner. Pleading that the petitioner's counsel by letter dated 27 -2 -2012 requested the Assistant Registrar of CESTAT to furnish a copy of the order and on 8 -3 -2012 there was a direction by the CESTAT to communicate the said order, it is claimed that the order dated 30 -11 -2011 was communicated to the petitioner only in April, 2012. In the meanwhile, the petitioner also filed an application seeking modification of the order dated 30 -11 -2011 and for full waiver of pre -deposit of 50% of the duty demanded on the ground that the petitioner company has been referred to BIFR. However, without considering the same, the final order dated 28 -5 -2012 came to be passed by the CESTAT dismissing the main appeal itself and the said order was communicated to the petitioner vide Assistant Registrar's letter dated 23 -8 -2012. It is further pleaded that the ex parte order dated 30 -11 -2011 was without assigning any reasons and even the final order dated 28 -5 -2012 came to be passed without considering the petitioner's request for modification of the condition for pre -deposit of 50% of duty.
(2.) THUS it is contended that the impugned orders dated 30 -11 -2011 and 28 -5 -2012 passed by the CESTAT being arbitrary, illegal and in violation of principles of natural justice are liable to be set aside. The respondents in their counter -affidavit did not controvert the plea that the order dated 30 -11 -2011 was communicated to the petitioner only in April, 2012. However it is contended that the petitioner had earlier filed W.P. No. 5111 of 2013 for the same relief which was dismissed as withdrawn on 28 -2 -2013 and as such the present writ petition is not maintainable. On merits, it is contended that as the petitioner company had clandestinely removed the cotton yarn and also failed to maintain the statutory records properly, the Commissioner had rightly passed the order dated 30 -12 -2008.
(3.) WE have heard the learned counsel for both the parties and perused the material available on record.;