J.R. Shah Vs. Commissioner of Central Excise

J.R. Shah vs Commissioner of Central Excise

Type Court Judgment Court Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai Decided Jul 19, 2005

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Citation: sooperkanoon.com/39758
Court: Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai
Judge: A Wadhwa, S T S.S.
Decided On: Jul 19, 2005
Subject: Service Tax

Case Summary

AI-generated summary - not the official court judgment text.

Service Tax

Key legal issue: Service Tax

Parties & Advocates

Appellant / Petitioner

J.R. Shah

Respondent

Commissioner of Central Excise

Legal References

Reported In: (2005)(190)ELT16Tri(Mum.)bai

Excerpt

.....stay order. the matter has a chequered history. the appellants filed an appeal against the order of the commissioner (appeals) of central excise, vide which penalty of rs. 25,00,000/- was imposed upon the applicants herein under the provisions of rule 209a of the central excise rules (erstwhile).the applicant is director of m/s. sunil mills, which was the main noticee. an application for dispensing with the pre-deposit of penalty in terms of provisions of section 35b of the central excise act, 1944 was also filed. the said application was taken up by the bench and vide in its stay order nos. 1404-1412/wzb/98, dated 24-6-1998, the appellant was directed to deposit an amount of rs. 20,000/- within a period of two months from the date of passing of the order, subject to which condition, pre-deposit of balance amount of penalty was dispensed with.it is seen that the appellant did not deposit the said amount till the appeal was listed for final hearing on 11-3-2004. on the said date, after noticing that stay order has not been 'complied with, the tribunal vide its order no. 2563/02 204/c dismissed the appeal for non-compliance. thereafter the appellant filed an application for restoration of their appeal. while disposing the said application, the bench vide its order m-997 and 998/wzb/2004/c-i, dated 23-11-2004, found that the stay order was not complied with till that date and as such the applications were rejected.2. now the appellants have deposited the amount of rs. 20,000/- and prayed for restoration of the appeal. shri prakash shah, the learned advocate appeared in support of restoration application. however it is seen that no justifiable reason has been given by the learned advocate for non-deposit of a small amount of rs. 20,000/- by the director, during the long period of 1998 onwards, when the stay order was passed.the appellants with their conduct of not complying with the said stay order had also shown no interest in prosecuting the appeal. the above.....

Full Judgment

1. The Miscellaneous Application is for restoration of the appeal dismissed earlier for non-compliance with the stay order. The matter has a chequered history. The appellants filed an appeal against the order of the Commissioner (Appeals) of Central Excise, vide which penalty of Rs. 25,00,000/- was imposed upon the applicants herein under the provisions of Rule 209A of the Central Excise Rules (erstwhile).

The applicant is Director of M/s. Sunil Mills, which was the main noticee. An application for dispensing with the pre-deposit of penalty in terms of provisions of Section 35B of the Central Excise Act, 1944 was also filed. The said application was taken up by the Bench and vide in its Stay Order Nos. 1404-1412/WZB/98, dated 24-6-1998, the appellant was directed to deposit an amount of Rs. 20,000/- within a period of two months from the date of passing of the order, subject to which condition, pre-deposit of balance amount of penalty was dispensed with.

It is seen that the appellant did not deposit the said amount till the appeal was listed for final hearing on 11-3-2004. On the said date, after noticing that stay order has not been 'complied with, the Tribunal vide its Order No. 2563/02 204/C dismissed the appeal for non-compliance. Thereafter the appellant filed an application for restoration of their appeal. While disposing the said application, the Bench vide its Order M-997 and 998/WZB/2004/C-I, dated 23-11-2004, found that the stay order was not complied with till that date and as such the applications were rejected.

2. Now the appellants have deposited the amount of Rs. 20,000/- and prayed for restoration of the appeal. Shri Prakash Shah, the learned Advocate appeared in support of restoration application. However it is seen that no justifiable reason has been given by the learned advocate for non-deposit of a small amount of Rs. 20,000/- by the Director, during the long period of 1998 onwards, when the stay order was passed.

The appellants with their conduct of not complying with the said stay order had also shown no interest in prosecuting the appeal. The above conduct of the appellants also reflects upon their casual approach towards the orders passed by the Tribunal. It cannot be said that the appellant, who is a Director of the Mill, was having any financial difficulty in depositing the small amount of Rs. 20,000/-, out of the huge penalty amount of Rs. 25,00,000/- imposed by the Commissioner. No sufficient convincing explanation is coming forth from the appellant, for non-deposit of directed amount. Such a bad precedent cannot be set by allowing the appeal to be restored, inasmuch as it would be convenient for the appellant not to deposit the directed amount immediately after the stay orders of the Tribunal but to deposit the same immediately either before hearing of the appeal or after dismissal of the appeal, with a request for restoration. It is also noticed that the appellant earlier had asked for restoration of the appeal, even without depositing the amount in question and it is only after their application was rejected, they deposited the amount and filed a fresh application. Such tactics adopted by the appellant cannot be appreciated.

3. In view of the foregoing, we do not find any justification for restoration of the appeal. For the above decision, we also refer to the Tribunal's decision in the case of New India Electrical Industries reported in 2004 (60) RLT 150 (CESTAT-Delhi).

Same Court & Year Customs Excise and Service Tax Appellate Tribunal CESTAT Mumb... Same Parties J.R. Shah vs Commissioner of Central Excise Same Subject Service Tax Same Judge A Wadhwa, S T S.S.