The CESTAT exceeded its jurisdiction by restoring appeals without compliance with mandatory pre-deposit requirements under the Central Excise Act.

JUDGMENT

G.S. Sandhawalia, J.

The present two appeals are directed against the orders dated 27.08.2018 (Annexure A-9) passed by Customs, Excise and Service Tax Appellate Tribunal (CESAT) wherein vide common order, the appeals of the Director of the Company, M/s Pelican Tobacco Co. Ltd. were restored without payment of necessary pre-deposit under the provisions of section 35 of the Central Excise Act, 1954 which was waived off vide order dated 24.10.2018 (Annexure A-10) and thereafter allowed on merits on 01.04.2019 (Annexure A-11).

2. In our considered opinion, the following question of law would arise for consideration:

"Whether the Ld. CESTAT had erred in passing the order dated 27.08.2018, Annexure A-7 restoring the appeal of the respondent which was earlier dismissed for want of mandatory pre-deposit, ignoring the fact that the respondent had never challenged the order dated 14.03.2013, Annexure A-3 whereby the respondent was granted exemption from pre-deposit subject to the pre-deposit by M/s Pelican Tobacco Co. Ltd., which order was modified by the Hon'ble High Court vide order dated 26.08.2013, Annexure A- 4 as well as by the Hon'ble Supreme Court, however, M/s PTCL had failed to make the pre-deposit and therefore the appeal of the respondent was dismissed vide order dated 23.09.2013, Annexure A-5?"

3. A perusal of the paperbook would go on to show that a demand/show cause notice dated 30.04.2010 (Annexure A-1) was issued upon the premises of M/s Pelican Tobacco Co. Ltd. which was registered with the Central Excise Department and engaged in manufacture of various brands of cigarettes. The premises had been searched on 21.04.2008 under the search warrants and resultantly vide detailed order dated 23.08.2011 (Annexure A-2), various amounts were imposed as penalty under the provisions of the said Act both upon the company and the Directors-respondents along with other officials. The relevant part of the order imposing the said amounts reads as under:

"Order

(i) I hold that the extended period provision as envisaged under proviso to section 11A(1) of Central Excise Act, 1944 is invokable in this case.

(ii) I confirm and order recovery of Central Excise duty of Rs. 2, 43, 58, 512/- (BED Rs. 1, 82, 01, 178/- + ADE Rs. 7, 70, 254/- + NCCD Rs. 27, 03, 840/- + ADD Rs. 21, 01, 144/- + E.Cess Rs. 4, 75, 528/- + S&H E.Cess Rs. 1, 06, 568/-) from M/s Pelican Tobacco Co. Ltd., Plot No.37B, Sector 6, Faridabad under section 11A(1) of the Central Excise Act, 1944;

(iii) I confirm and order recovery of Central Excise duty of Rs. 9, 28, 37, 834/- (BED Rs. 7, 26, 56, 307/- + NCCD Rs. 98, 90, 235/- + ADD Rs. 75, 87, 280/- + E.Cess Rs. 18, 02, 674/- + S&H E.Cess Rs. 9, 01, 338/-) from M/s Pelican Tobacco Co. Ltd., Plot No.37B, Sector 6, Faridabad under section 11A(1) of the Central Excise Act, 1944;

(iv) I confirm and order recovery of Central Excise duty of Rs. 51, 37, 54, 251/- (BED Rs. 38, 73, 38, 299/- + NCC Rs. 5, 52, 28, 601/- + ADD Rs. 4, 28, 84, 243/- + ADE Rs. 1, 61, 28, 485/- + E.Cess Rs. 1, 00, 31, 593/- + S&H E.Cess Rs. 21, 43, 030/-) from M/s Pelican Tobacco Co. Ltd., Plot No.37B, Sector 6, Faridabad under section 11A(1) of the Central Excise Act, 1944;

(v) I order recovery of interest on the above determined demands of duty from M/s Pelican Tobacco Co. Ltd., Plot No.37B, Sector 6, Faridabad under section 11A(1) of the Central Excise Act, 1944;

(vi) The amount of Rs. 1, 08, 00, 000/- already deposited by M/s Pelican Tobacco Co. Ltd., Faridabad towards duty liability during the course of investigation, is appropriated against the above demands of duty and the balance amount of determined duty is required to be recovered from them forthwith.

(vii) I impose penalty of Rs. 63, 09, 50, 597/- (Rupees Sixty Three Crores Nine Lacs Fifty thousand Five hundred Ninety Seven only) i.e. equivalent to the total amount of duty determined, on M/s Pelican Tobacco Co. Ltd., Plot No.37B, Sector 6, Faridabad under section 11AC of Central Excise Act, 1944.