Nisan Ferro Cast Ltd. vs Commissioner of Central Excise

The original order dated 22nd March, 2011 passed by the Assistant Commissioner directing recovery of duty, interest, penalty etc. reads as follows:

"1. I confirm and order for recovery of the duty of Rs. 3,33,688/- (Rupees three lakh thirty three thousand six hundred and eighty eight only)(Rs. 1,83,243/- + Rs. 1,50,445/-) under rule 9(2), 96ZO of the Central Excise Rules 1944 read with Section 11A of the Central Excise Act 1944.

Interest is payable at the rate of 18% per annum on the outstanding amount for the period from the due date till the date of actual payment of the whole of the outstanding amount in terms of rule 96ZO(3) of the Central Excise Rules 1944.

Penalty of Rs. 10,000/- (Rupees ten thousands) is imposed upon the said appellants under rule 96ZO of the Central Excise Rules 1944.

Penalty of Rs. 10,000/- (Rupees ten thousands) is imposed upon the said appellants under rule 173Q of the Central Excise Rules 1944."

An appeal against the aforesaid order was presented 28 days after the expiry of the prescribed period of limitation.

The Commissioner of Central Excise (Appeals) refused to condone the delay. Therefore, appeal was not considered on merits.

The order passed by the Commissioner of Central Excise on 2nd January, 2013 was appealed against before the learned Tribunal which was dismissed by the impugned order dated 10th June, 2014. It is the aforesaid order dated 10th June, 2014 which is under challenge. Copy was duly served. No one has appeared. In the circumstances, we by our order dated 30th March, 2015 directed Mr. Bharadwaj, learned advocate to take instruction. We also directed that a further copy be served upon him. Copy was served. Today when the matter was taken up for hearing, Mr. Bharadwaj has submitted that he has not formally been instructed to appear.

Learned advocate appearing for the respondent submitted that his senior, Mr. A.K. Chatterjee, learned advocate is engaged elsewhere. He prayed for adjournment which is refused.

After hearing the learned advocate for the petitioner, it appears that the provision for pre-deposit under section 35F of the Central Excise Act came into force with effect from 6th August, 2014 whereas the original order sought to be challenged in this appeal is dated 22nd March, 2011.

For the ends of justice, we are inclined to allow the prayer for condonation of delay subject to deposit as per section 35F of the Central Excise Act within two weeks. In default of such deposit, the appeal shall stand dismissed. In the event such deposit is made, the Commissioner of Central Excise (Appeals)-III shall hear out the appeal on merits.

The appeal and the application are disposed of.