At, High Court of Gujarat At Ahmedabad
By, THE HONOURABLE MR. JUSTICE AKIL KURESHI & THE HONOURABLE MR. JUSTICE A.J. SHASTRI
For the Petitioner: Nirav P. Shah, Advocate. For the Respondent: Amee Yajnik, Advocate.
A.J. Shastri, J. (Oral)
1. The petition is filed by the petitioner for the purpose of challenging the order dated 21-8-2015, passed by the learned Tribunal, Ahmedabad, in Order No. A/11237/2015, as also sought a relief to quash and set aside the order dated 14-10-2014, passed by the Commissioner (Appeals). From the perusal of the impugned order dated 21-8-2015, passed by the learned Tribunal, Ahmedabad, it appears that the learned Tribunal was dealing with an ap
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lication of the petitioner for seeking condonation of delay of 175 days, which occasioned in preferring an appeal against an order dated 14-10-2014, passed by the Commissioner (Appeals), SuratI. The petitioner had submitted that it was specifically mentioned in the application filed by the petitioner for seeking condonation of delay that there is a financial crunch on account of various reasons with the petitioner, and upon that compelling circumstance, the petitioner could not meet with a mandatory requirement of 10% deposit of the duty while preferring an appeal under the provisions of Section 35F of the Act and therefore, could not deposit the same to present an appeal before the learned Tribunal. The petitioner while making such request of condonation of delay has drawn the attention of the learned Tribunal that there are several identical cases with respect to other applicants, in which, the learned Tribunal has granted stay and entertained the appeal. It was pointed out by the learned counsel for the petitioner that the Tribunal's attention was drawn to a decision of Hon'ble Supreme Court in case of Union of India v. Pirayam Subhash reported in 2015 (39) S.T.R. 540 (S.C.) and requested to take a lenient view. It was also brought to the notice of the learned Tribunal that the amount of 10% was already deposited on 27-7-2015, which comes to Rs. 3,70,754/ as mentioned by the learned advocate and the learned advocate for the petitioner has stated before the Court that despite this fact having been brought to the notice of the learned Tribunal, the Tribunal arrived at a conclusion that the requirement of mandatory deposit under the provisions of Section 35F of the Central Excise Act, 1944, as amended, is linked with the filing of the appeal and therefore, the request for condonation of delay was not exceeded to vide order dated 21-8-2015.2. We have heard the learned advocate for the petitioner and perused the record and the averments contained in the original application filed by the petitioner for seeking condonation of delay and found that the learned Tribunal ought to have considered the case of the petitioner and ought to have condoned the delay. The learned advocate has pointed out that there are several cases with respect to other assessees, wherein, the learned Tribunal has granted unconditional stay even after introduction of amended Section 35F with respect to compulsory deposit of 10% of the confirmed duty. The petitioner has also contended that there appears to be a good case on merit and requested the Court not to allow the meritorious case to be disposed of on technicality.3. As against this, the learned advocate Ms. Amee Yajnik has filed an affidavit and contended that the provision contained in the Act is required to be observed and stated that the Tribunal has not committed any error which warrants the interference of this Court in the petition.4. Having heard the learned counsel for the petitioner as well as the learned advocate for the respondent, it appears that a fair chance is required to be given to the petitioner to see that his appeal before the Tribunal be disposed of and dealt with on its own merits in accordance with law, more particularly, when the learned advocate has drawn the attention of this Court that requirement of deposit of 10% is already fulfilled while presenting an appeal. Therefore, to extend such opportunity, in the background of present case and circumstance, more particularly in view of the averments made in the application for seeking condonation of delay, the order dated 21-8-2015 passed by the learned Tribunal deserves to be quashed and set aside and the appeal presented before the learned Tribunal is required to be dealt with on its own merits and in accordance with law.5. Resultantly, the impugned order dated 21-8-2015 is quashed and set aside and the petitioner is permitted to deposit the said amount of 10% of the duty in question and upon presentation of challan about deposit, the appeal be taken up for consideration on its own merits in accordance with law.6. In view of the above, the petition is allowed to the aforesaid extent and the learned Tribunal is requested to deal with the appeal on merit in accordance with law as expeditiously as possible.
"2016 (340) ELT 131,"