K.L. Sharma, J. - (1.) This is a writ petition under Article 226 of Constitution of India for quashing the final order No. A/628/94-NRB, dated 5-7-1994 passed by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi whereby the waiver application filed by the petitioner alongwith appeal was rejected and the appeal was dismissed due to default in depositing the amount within the prescribed time.
(2.) I have heard Shri A.P. Mathur learned counsel for petitioner and Mr. Shisheer Kumar learned standing counsel for the respondent and perused the material brought on record. The learned standing counsel informs that no counter affidavit will be filed by the respondents. Both the counsels are agreed that the writ petition may be finally disposed of with the necessary direction.
(3.) The petitioner was assessed Rs. 61,358.21 as Excise duty by Deputy Collector, Central Excise. He filed an appeal which was confirmed by Collector Appeals, Central Excise. Thereafter, he filed Second Appeal before the Tribunal alongwith an application for waiver to condition of pre-deposit under Section 35F of Central Excises and Salt Act. The Tribunal rejected the waiver application and directed the petitioner to deposit the duty of Rs. 61,358.21 within two months. The petitioner challenged the order of rejection of waiver application by filing the present writ petition but he was not granted any stay order in the writ petition and consequently the time of two months to make the pre-deposit has expired. However, the petitioner has deposited the duty amount of Rs. 61,358.21 on 19.8.1994 in the State Bank of India, Kanpur in connection with the second appeal pending before the Tribunal Since the two months time has already expired the pre-deposit had not been made, the Tribunal has dismissed the appeal for non-compliance of the legal requirement on 3-4-1994. Therefore, the petitioner, has been deprived of his statutory right of appeal even though he has deposited the full amount of Rs. 61,358:21 in the Tribunal.;