Back
2016 Supreme(Raj) 945
IN THE HIGH COURT OF RAJASTHAN
Ajay Rastogi and J.K. Ranka, JJ.
Jain Poles Industries - Petitioner
Versus
Union of India - Respondent
D.B. Civil Writ Petition No. 2432 of 2016
Decided on : 02-03-2016
For the Petitioner: Sameer Jain, Counsel.
The central legal point established in the judgment is the consideration of Sec. 35F of the Act, 1944 and the petitioner's compliance with the order of the adjudicating authority in determining the restoration and hearing of the appeal on merits.
Headnote:
Sec. 35F - Customs, Excise & Service Tax Appellate Tribunal - The court considered the application filed under Sec. 35F of the Act, 1944 seeking exemption from pre-deposit, the dismissal of the application by the Tribunal, and the subsequent challenge in the instant petition. The court also noted a similar controversy in a previous case and granted interim protection to the writ petitioner.
Fact of the Case:
The petitioner filed an appeal before the Customs, Excise & Service Tax Appellate Tribunal and sought exemption from pre-deposit, which was decided by the Tribunal. The petitioner challenged the decision and sought restoration and hearing of the appeal on merits.
Finding of the Court:
The court admitted the petition and issued notice of the writ as well as stay application. It also directed that if the petitioner has deposited 7.5% of the demand as per the order of the adjudicating authority, the appeal should be restored and heard on merits.
Issues: The issues involved the dismissal of the application under Sec. 35F of the Act, 1944 by the Tribunal and the subsequent challenge in the instant petition.
Ratio Decidendi: The court considered the provisions of Sec. 35F of the Act, 1944 and the petitioner's compliance with the order of the adjudicating authority in determining the restoration and hearing of the appeal on merits.
Final Decision: The petition was admitted, and the court directed the restoration and hearing of the appeal on merits, subject to the petitioner's compliance with the order of the adjudicating authority.
Counsel submits that along with the appeal which the petitioner preferred before the Customs, Excise & Service Tax Appellate Tribunal application was filed u/Sec. 35F of the Act, 1944 seeking exemption from pre-deposit which was decided by the Tribunal vide order dated 31-1-2014 and a quantified amount was to be deposited in 10 instalments which was challenged by the petitioner by filing DB Central Excise Appeal No. 7/2014 and he withdrew the same with liberty to move application before the Tribunal and this Court vide order dated 30-9-2015 permitted the petitioner to withdraw the appeal and it was expected from the authority to examine sympathetically in accordance with law.
2. Pursuant thereto, misc. application for recalling/modification of the order dated 31-1-2014 came to be filed before the Tribunal and one of the specific plea raised was that amendment was made u/Sec. 35F of the Act, 1944 which came into force w.e.f. 6-8-2014 and the assessee has to deposit the mandatory amount of the duty or penalty in dispute @ 7.5% or 10% as the case may be but the misc. application came to be dismissed by the Tribunal vide order dated 23-11-2015 which is subject matter of challenge in the instant petition.
3. Counsel submits that the same self-controversy was raised by DB Civil Writ Petition No. 10740/2014 and this Court vide order dated 30-10-2014 [2015 (316) E.L.T. 34 (Raj.)], taking note of the amendment introduced u/Sec. 35F of the Act, 1944 w.e.f. 6-8-2014, while calling upon the respondents, granted interim protection to the writ petitioner.
4. Counsel, on instructions, submits that 7.5% of the demand has been deposited by the petitioner and requests that at least the appeal may be heard on merits.
5. Issue notice of the writ as well as stay application.
6. In the meanwhile, if the petitioner has deposited 7.5% of the demand in terms of order of the adjudicating authority dated 31-1-2013, the appeal, which has been dismissed by the Tribunal because of non-compliance of the order passed on application u/Sec. 35F of the Act, 1944, be restored and heard on merits.
Petition admitted.
