Rp Tripathi v. Commissioner Central Excise

ORDER '

16.L0.2012 CM 1796712012 in CEAC 4212012 CM 1799212012 in CEAC 4312012 Exemption is allowed sudect to all just exceptions. Application is disposed of. 1EAC 42120t2 & cM 1796612012 C]EAC 4312012 & cM 1799112012 Issue notice.

¶2Mr. Satish Kumar, sr. standing counsel accepts notice'

¶3The petitioner is aggrieved against the order of the Customs, Excise & Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Service Tax Appellate Tribunal ('Tribunal', for short) and contend that the following substantial question of law arises i.e. "whether the Tribunal fell into error in hotding that the failure to deposit an amount directed automatically resulted in adverse condition as far as appellants are concerned, disentitling them to make their contentions on merits".

¶4The facts of the case are that the main assessee iM/s K P Pouches (P) Ltd. manufacturing gutkha and pan masala was issued a show cause notice' Adjudication resulted in final order in original dated 30.11 .2009. The Tribunal directed IWs K P Pouches (P) Ltd. to deposit { 5 crores and at the same time observed that in case this order was complied with and there was no need for the other appellants to make pre-deposit. IWs K P Pouches (P) Ltd. approached this Court in CEAC gl20l1, which was dismissed' It did not comply with the otder. As a result the Tribunal observed as follows in order dated 3.4.2012 that since the direction has not been complied with, the appellant was guilty of wilful violation of Section 35F of the Central Excise Act, 1944.

¶5It is contended that the order of the Tribunal made in the case of IWs K p pouches (P) Ltd. on2.11.2011 nowhere mentions that in the event of default by the appellant, the present appellant and other aggrieved parties, would also be treated in the same fashion i.e. as defaulters. In the absence of any indication and even on the observation of merits of the appellants' case since he was directed to pay penalty to the tune of { one crore, the automatic assumption of default in compliance with the previous direction, was erroneous and without application of mind.

¶6We have heard counsel for the parties. It is apparent from the order dated 2.11.2011 that the Tribunal essentially directed \zlls K P Pouches (P) Ltd. to deposit {5 crores within 8 weeks. The present appellant request for waiver of the pre-deposit in respect of the amount directed to be paid by him. In these circumstances we find merit in the argument that without first dealing with the merits of the individual appellant's case for stay, the Tribunal ought not to have mechanically assumed default and dismissed the appeal. This Court in previous order dated 21.9.2012 in CEAC 3412012 and the connected matters dealt with the case other than the present one i.e. Ravi Singhal, Supreme Road Transport P\4. Ltd. and Supreme Trading Co. and observed that this approach of the Tribunal is indefensible. In these circumstances, the present appellant too has to succeed as in the case CEAC Nos.34l2012,3512012 and3612012 (disposed of by order dated 21.9.2012) for the same reasons. The Court sets aside the order of the Tribunal and directs to the present appellant for waiver of the pre-deposit, in regard to the application pending in this regard. The parfy is directed to appear before the Registrar on 31't October, 2012 fot hearing of the application for stay in the appeal. The appeal is allowed in the above terms' Order Dasti. s. RAVTNDRA BHAT, J tl ,l M,\ ''-r' R.V.EASWAR, J ocToBER 1.6, 20L2 vld

8-47 &48 {. N{ THE HIGH COURT OF DELHI AT NEW DELHI + CEAC 4212012 RAJINDER GAUR ..... Petitioner + CEAC 43I2OI2 RP TRIPATHI ..... Petitioner Through : Mr. Pankaj Bhatia and Ms. Mehak Khajiria, Advs. VERSUS COMMISSIONER CENTRAL EXCISE ..... Respondent Through : Mr. Satish Kumar, sr. standing counsel with Mr. Chirag Bhatia, Adv. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE R.V.EASWAR