Sportking Synthetics Vs. Commissioner of C. Ex. - Court Judgment

Excerpt:

.....sufficient cause. even otherwise, no prejudice can be said to had been caused to them when they had no case whatsoever and their appeal had not been dismissed for want of prosecution, but on merits. the ratio of law laid down in j.k.synthetics (supra), referred by the counsel, wherein it has been observed that where the appeal had been dismissed for want of prosecution, the same should be restored and heard on merits when sufficient cause is made out for non-appearance of the assessee, is not attracted to the present case, as such is not the position in the case in hand, in the light of the facts and circumstances detailed above.5. consequently, we do not find any merit in the r.o.a. application and the same is ordered to be dismissed.

Judgment:

1. Through the present application, the appellants have sought restoration of their appeal which was dismissed vide Final Order No.A/879/2001/NB (D), dated 20-7-2001.

2. The learned Counsel has contended that since the order was passed ex parte, the same deserves to be recalled and the appeal should be restored to its original number. He has placed much reliance on the ratio of the law laid down in J.K. Synthetics v. CC - 1996 (86) E.L.T.472 (S.C.). But we are unable to accept this contention of the Counsel.

The bare perusal of the impugned order shows that none appeared on behalf of the appellants on 20-7-2001. The appeal was decided on merits after going through the record. The appellants availed Modvat credit of the disputed amount on the inputs imported by them under D.E.P.B Scheme free of duty. They were not entitled to the Modvat credit at all and it was observed that the Modvat credit had been rightly disallowed to them. Even the learned Counsel has not disputed that the Modvat credit was not available to the appellants in respect of the inputs imported by them free of duty under D.E.P.B. Scheme.

3. The learned Counsel has only contended that since the Modvat credit has been reversed by the appellants, no penalty could be imposed on them. But this contention is not liable to be accepted for the simple reason that they illegally availed Modvat credit of Rs. 34,60,907/-, whereas the penalty imposed on them by the lower authority was Rs. 3,00,000/- only. The same was upheld by the Tribunal through the impugned order as it was not found to be exorbitant or excessive.

4. The appeal of the appellants was decided on merits and the same was dismissed through the impugned order. Non-appearance of the appellants was also not found to be for sufficient cause. Even otherwise, no prejudice can be said to had been caused to them when they had no case whatsoever and their appeal had not been dismissed for want of prosecution, but on merits. The ratio of law laid down in J.K.Synthetics (supra), referred by the Counsel, wherein it has been observed that where the appeal had been dismissed for want of prosecution, the same should be restored and heard on merits when sufficient cause is made out for non-appearance of the assessee, is not attracted to the present case, as such is not the position in the case in hand, in the light of the facts and circumstances detailed above.

5. Consequently, we do not find any merit in the R.O.A. application and the same is ordered to be dismissed.