Sanjib Banerjee, J. - (1.) The petitioner complains of the failure by the Customs, Excise and Service Tax Appellate Tribunal, Eastern Zonal Bench to modify a previous order on the ground that a coordinate Bench of the Tribunal had taken a different view in similar circumstances. An appeal under Sec. 35B of the Central Excise Act, 1944 was entertained by an order of October 28, 2015. Since such appeal was filed prior to August 6, 2014, the provision in Sec. 35F of the Act pertaining to discretion as to pre -deposit governed the matter. The Tribunal directed the petitioner to deposit a sum of Rs. 6 lakh in addition to the amount of Rs. 4.18 lakh already deposited. The further deposit was directed to be made within eight weeks from the date of the order, for the remainder of the demand to remain stayed during the pendency of the appeal. Compliance was directed to be reported on January 4, 2016 and the order observed that the failure to deposit the amount would result in dismissal of the appeal without further reference.
(2.) The petitioner did not make the further deposit of Rs. 6 lakh in terms of the order dated October 28, 2015. Instead, the petitioner applied for modification of the order of admission and such modification application came to be taken up on January 4, 2016, the date fixed by the order of October 28, 2015 for filing the compliance report.
(3.) The petitioner refers to an order of the West Zonal Bench reported at : 2008 (10) S.T.R. 580 to suggest that in similar circumstances the pre -deposit in respect of another appellant had been waived on the ground that the net worth of the relevant company was negative. In paragraph 12 of the relevant judgment of the West Zonal Bench, there was a reference to a Supreme Court judgment by name. The relevant Supreme Court order has been brought. Such order of the Supreme Court of March 7, 2007 [2010 (256) E.L.T. A61 (S.C.)] is quoted: "Delay condoned. "Leave Granted. "The appeal of the assessee has been dismissed by the Tribunal for non -deposit of Rs. 1.40 Crores. The assessee complains that it has already made an application pointing out to the Tribunal that the Company is under BIFR. According to the assessee, its application dated NIL September, 2005, being Modification Application No..../2005, is pending even today before the Tribunal. In the circumstances, we direct the Tribunal to decide the Modification Application No..../2005. We also want the Tribunal to record its findings regarding the net worth of the company. If the net worth of the company is found to be negative, then the Tribunal will consider restoration of the appeal to its file and in which event the matter will have to be decided on merits. If, however, the net worth is found to be a positive figure, the Tribunal will say so, give its reasons and dispose of the modification application in accordance with law. "The Civil Appeal is disposed of accordingly.";