The determination of compliance with legal requirements should be made by the appropriate authority and cannot be based solely on the petitioner's declaration.

ORDER

1. Heard Mr. S.C. Lal, learned Senior Counsel for the petitioner and Mr. B.A. Prusty learned counsel for the Revenue. In the present writ application, challenge has been made by the petitioner to an order dated 14-5-2012 passed by the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata in Excise Appeal No. E/A/270/2009 wherein the following order has been passed:

None present for the appellants. Heard the ld. A.R. for the Department. We find that vide this. Tribunal's Order No. S-189/Kol/2012 dated 6-3-2012, the appellants were directed to make pre-deposit 25% of duty within eight weeks and to report compliance on 10-5-2012. The appellants did not report the compliance. In these circumstances, the appeal is dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944, xx xx xx

Further challenge has also been made to an order dated 6-9-2012 passed in Miscellaneous Application No. E/M/211/2012 arising out of Excise Appeal No. E/A/270/2009 (Annexure-1), whereby the application filed by the petitioner-company for restoration of the appeal came to be dismissed.

2. Learned Senior Counsel for the petitioner advances various contentions both on merit as well as alleging non-compliance of the principles of natural justice. Insofar as the impugned order dated 14-5-2012 is concerned, it is asserted on behalf of the petitioner that, none was present on behalf of the appellant on the said date but, the counsel's absence was on account of the fact that on the earlier date which had been fixed by the Tribunal, the petitioner was present through his counsel but, purportedly on account of the Tribunal not having held its sitting on the said date the matter was adjourned. It is further claimed that the petitioner had no knowledge/intimation of the subsequent date, on which date, the appeal stood dismissed.

Learned Senior Counsel for the petitioner further asserts that the petitioner had complied with the requirements of pre-deposit as directed by the Tribunal by order dated 6-3-2012, by way of reversal of credit entry in the Entry Book under Rule 9 of Cenvat Credit Rules, 2004 at its Unit registered at Ghaziabad in the State of Uttar Pradesh. In order to establish such contention, Annexure-4 has been filed, which is a copy of the entries made in the "Entry Book of Duty Credit Register" which indicates that on 1st May, 2012, a sum of Rs. 9,27,639.00 had been reversed in the said duty credit book, which in effect tantamounted to deposit of excise duty.

3. Learned counsel for the petitioner placed reliance on various judgments in support of his contentions and in particular, the judgment of the High Court of Punjab and Haryana at Chandigarh in the case of Victory Impex Vs. Commissioner of Central Excise, where the Division Bench came to held that the duty levied u/s 3 of the Act can be discharged by way of payment in cash or it may be paid by utilizing CENVAT Credit.

Therefore, it is asserted that the reversal of CENVAT credit by the petitioner-company, at its Ghaziabad Unit, amounted to compliance of the directions of the Tribunal. Hence, the impugned order by which the petitioner's appeal came to be rejected under Annexure-6 and the rejection of the petitioner's application for restoration of appeal impugned under Annexure-11 ought to be quashed. The petitioner further laid stress on the provision of Rule 12A(4) of the CENVAT Credit Rules, 2004 as well as Rule 2(ea) of the Central Excise Rules, 2002 in order to contend that, such reversal of credit though by a separate unit of the company located at Ghaziabad, is permissible. Rule 2(ea) of the Central Excise Rules, 2002 and Rule 12A(4) of the CENVAT Credit Rules, 2004 are quoted hereinbelow:

Rule 2(ea) - "large tax payer" means a person who,-

(i) has one or more registered premises under the Central Excise Act, 1944 (1 of 1944); or

(ii) has one or more registered premises under Chapter V of the Finance Act, 1994 (32 of 1994);

and is an assessee unde