ORDER
M.Y. Eqbal, J.
1. By this writ application, the petitioner seeks appropriate order directing the respondents to issue copies of the Orders No. 133/RAN/C.Ex/Appeal/03 dated 22.10.2003 and No. 135/RAN/C.E/Appeal/03 dated 22.10.2003 on the ground that the petitioner has not been served with copies of the aforesaid orders till date and, further for quashing the summons as contained in letter No. 76 dated 22.2.2008 issued by the Superintendent, Central Excise, Range-I, Dhanbad under the provisions of Section 14 of Central Excise Act whereby the authority has started inquiry on account of nonpayment of Government arrears.
2. The petitioner's case is that during the years 1996-97 and 1999, the petitioner was served with a show cause notice by the Central Excise Department and the petitioner said to have informed the authority that the plant of the petitioner is closed down permanently since 12.10.1998 and in the said letter the petitioner gave the new correspondence address. However, the Deputy Commissioner of Central Excise, Dhanbad passed order on 16.7.1999 and 08.6.1999 and a demand of Rs. 68,884/- and 1,23,834/- respectively were raised. Petitioner's further case is that aggrieved by the said orders, two separate statutory appeals were filed before the appellate authority, Patna i.e. the Commissioner of Central Excise and Customs, Patna. It is alleged that petitioner was never served any notice of hearing of the appeals, but in the year 2005, a letter dated 20.9.2005 was issued from the Office of Superintendent, Central Excise, Range-I, Dhanbad mentioning the duty and penalty payable by the petitioner. In response to the said letter, the petitioner vide letter dated 22.12.2005 requested the authority to forward the copes of two orders dated said to have been passed against the petitioner at Ranchi stating specifically that the petitioner has no knowledge about the said orders. Surprisingly, the petitioner said to have served with second letter dated 27.1.2006 asking the petitioner to deposit all Government dues along with interest without giving reply to the request of the petitioner for supplying copies of the aforesaid orders.
3. The case of the respondents is that against the order dated 16.7.1998 passed in Order-in-Original No. 32/Deputy Commissioner/99 dated 16.7.1999, the petitioner preferred an appeal on 15.10.1999, but failed to comply the provisions of pre-deposit as required under Section 35F of the Central Excise Act. Similarly, against the order passed in Order-in-Original No. 24/Deputy Commissioner/99 dated 08.6.1999, the petitioner preferred another appeal on 15.10.1999, but failed to comply the provision of pre-deposit as required under Section 35F of the Act. Consequently, the Commissioner (Appeals) on the ground of non-compliance of the aforesaid provisions, rejected the appeals and communicated the orders passed by him to the Adjudicating Authority i.e. the Commissioner of Central Excise and the petitioner-appellant. The respondents' further case is that there is no record of closure of unit or any change of address by the petitioner in the office of the Commissioner (Appeals) which ought to have been communicated to the office of Commissioner (Appeals). It is stated that due to bifurcation of jurisdiction, these cases were transferred to the Commissioner (Appeals), Central Excise and Service Tax, Ranchi and the case was decided accordingly. Neither the petitioner, nor his representative availed the opportunity of personal hearing. On 20.2.2001, the Advocate of the petitioner approached the office of the Commissioner (Appeals) and submitted an application for extension of time for personal hearing. Even at that time also, the petitioner did not furnish the changed address. It is contended that although the petitioner preferred appeals in both cases, but did not pursue the same. They even failed to get any stay order from the Office of the Commissioner (Appeals). The non-service of the order in appeal to the petitioner is denied by the respondents.
4. We have heard Mr. M.S. Mittal, learned Counsel appearing for the petitioner and, Mr. Mokhtar Khan, learned Asst. Solicitor General of India.
5. The case of the petitioner in short is that against the orders passed by the Commissioner, Central Excise dated 16.7.1999 and 8.6.1999, appeals were preferred before the Commissioner (Appeals), Central Excise and Customs, Patna, but no notice of hearing was given and orders have been passed by the appellate authority on 22.10.2003 rejecting the said appeals. The said orders passed in appeals were not communicated to the petitioner.
6. Section 35 of the Central Excise Act lays down the provisions of appeal. According to this Section, any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, may appeal to the Commissioner of Central Excise (Appeals) within 60 days from the date of communication to him of such decision or order.
7. Section 35F of the Act provides deposit of the duty demanded by the order under appeal. Section 35F of the Act reads as under:
SECTION 35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied:
Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject so such conditions as he or it may deem fit to impose so as to safeguard the interest of revenue.
Provided further that where an application is filed before the Commissioner (Appeals) for dispensing with the deposit of duty demanded or penalty levied under the first proviso, the Commissioner (Appeals) shall, where it is possible to do so, decide such application within thirty days from the date of its filing.
Explanation. - For the purposes of this section 'duty demanded' shall include,--
(i) amount determined under Section 11D;
(ii) amount of erroneous Cenvat credit taken;
(iii) amount payable under Rule 57CC of Central Excise Rules, 1944;
(iv) amount payable under Rule 6 of Cenvat Credit Rules, 2001 or Cenvat Credit Rules, 2002 or Cenvat Credit Rules, 2004;
(v) interest payable under the provisions of this Act or the rules made thereunder.
8. From perusal of the aforesaid provisions, it is clear that there is a mandatory requirement of pre-deposit of the amount involved in the appeal which is a duty demanded or penalty levied and failure to comply the aforesaid requirement, will make the appeal incompetent.
9. It has been categorically stated by the respondents in paragraphs 5 and 6 of the counter affidavit that the mandatory requirement of pre-deposit of the duty demanded under appeal was not complied with nor any application was filed by the petitioner praying for dispensing with the mandatory requirement of pre-deposit of the amount. These facts have not been controverted by the petitioner by filing any reply to the counter affidavit. It is not the case of the petitioner that appeals were filed after complying the requirement of law, nor is the case of the petitioner that appeals were filed with an application for dispensing or exempting the petitioner from complying the requirements of Section 35F of the Act. A person after filing appeal without complying the requirements of law is not supposed to sit tight over the matter and wait for communication of the order. It was also the duty and responsibility of the petitioner to pursue the appeal and know the result of the appeal. The petitioner neither took any step nor even tried to know the result of the appeal and it was only after demand was raised after rejection of the appeals in 2003, the instant application has been filed seeking a direction to the respondents to supply copy of the orders passed in 2003. This Court under Article 226 of the Constitution cannot come in the rescue of a person who is negligent and has failed to perform his statutory duty and responsibility.
For the reasons aforesaid, there is no merit in this applicable which is, accordingly, dismissed.