SACHIDA INDUSTRIES Vs. COLLECTOR OF CENTRAL EXCISE
LAWS(CE)-1991-11-18
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on November 18,1991

Sachida Industries Appellant
VERSUS
COLLECTOR OF CENTRAL EXCISE Respondents

JUDGEMENT

S.KALYANAM,MEMBER - (1.) THIS is an application for condonation of delay of 130 days in the presentation of the appeal before the Tribunal. Shri Chandrakumar, the learned Counsel for the petitioner submitted that the impugned order appealed against dated 30.11.1990 was received on 21.12.1990 and the appeal should have been filed by 20.3.1991. The impugned order was one rejecting the petitioners' appeal by the lower appellate authority under Section 35F of the Central Excises and Salt Act, 1944 on the ground that the petitioner had not made the pre -deposit within the stipulated time. The petitioner challenged this order by way of a Writ before the Karnataka High Court and consequently on its dismissal on 24.6.1991, filed a Writ appeal No. 1772/91 and the Bench of the Karnataka High Court dismissed the same on 24.7.1991. The learned Counsel submitted that initially, the lower appellate authority by his order dated 28.8.1990 directed the petitioner to make the entire amount in terms of the original order and subsequently, the petitioner took out an application seeking modification of the order and the petitioner was directed to make a pre -deposit of 50% of the sum involved. It was urged that this order of the lower appellate authority directing the petitioner to make pre -deposit of the 50% of the sum involved was not communicated to the petitioner at all and the petitioner was surprised to receive the impugned order rejecting petitioners' appeal under Section 35F of the Act. It is in these circumstances on grounds of violation of principles of natural justice the petitioner had to move the High Court initially by a Writ and subsequently by a Writ appeal resulting in the dismissal of the same on 24.7.1991. It was therefore submitted that since the petitioner was bona fide pursuing the remedies before the High Court on the ground that the interim order directing the petitioner to make pre -deposit of 50% of the sum involved was not communicated to the petitioner and inasmuch as the same was not an appealable order, the petitioner had to pursue the matter before the High Court. Therefore, in the interests of justice, the delay may be condoned. At this stage, the learned Counsel drew our attention to the fact that even before the original authority, the petitioner has given Bank Guarantee for a sum of Rs. 75,000/ - which is still subsisting as on date and the amount is far in excess of the sum directed to be pre -deposited by the lower appellate authority in the order cited supra.
(2.) SHRI PB Vedantham, the learned DR urged that there is nothing on record to indicate that the petitioner was directed in writing to make pre -deposit of 50% of the sum involved. As a matter of fact the Consultant for the petitioner was orally directed to make the pre -deposit.
(3.) WE have considered the submissions made before us. On going through the records we find that the lower appellate authority had orally directed the Consultant for the petitioner to make pre -deposit of 50% of the amount involved and that order was not communicated to the petitioner and in such a situation, it would not be possible for the petitioner to make the pre -deposit and therefore the petitioner moved the Writ Court after consequential dismissal of his appeal under Section 35 of the Act. Incidentally the appeal itself came to be dismissed under Section 35 of the Central Excises and Salt Act, 1944. We take note of the fact that in respect of the interim order orally directing the Consultant for the petitioner to make pre -deposit of 50% of the amount involved, the petitioner has no right of appeal before this Tribunal and at that stage could have the recourse only to the remedy before a Writ Court. Therefore, keeping all these facts and the circumstances and also having regard to the fact that Bank guarantee far in excess of the amount of 50% involved is said to be still subsisting and keeping in mind the bona fides of the petitioner in pursuing a legal remedy and by invoking the broad principles of Section 14 of the Limitation Act, 1963, we condone the delay in the presentation of the appeal before the Tribunal. E/Stay/S30/91. Since it is submitted that the petitioner has given Bank guarantee and the amount is subsisting and the matter was not decided on merits by the lower appellate authority, we take up the appeal by granting waiver of pre -deposit of duty.;


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