-;'sa^i;-ess^»^^''*''-"f'-:•:;;.y^y':w:.~^'^ ^^:"^ pl«^il**'' *»*••• ..-^ss^^ ^ssss^--"""" ^£''^z BEFORE THE HON'BLE HIGH COURT OF CHHATISGARH AT BILASPUR —1—TT WRIT PETITION fT) N0. i-> C ^^S QF 2007 IN THE MATTER OF: M/s Uniworth 1M 923-945, Uria Industrial Area, Sarora, Raipur. 'Hu-ough ite-Seneral Manager (Commcrcial) ^hri A P Klw^ ?A-S £-ih 5 t NC> l^ e^. •^A-sfcSh .SiNCtiC.-.—\T^;^u^(,"i''^«k..PetitioBCT se^i<®r»- c%(^.$c(ie5a^»fe<ctfej>u>/""^'T'" .--.-—---.,- Versus ^ 1. Commissioner ofCentral Excise (Appeals) Centra! Excise Building, Dhamtari Road, Tikarapara, Raipur(CG). 2. ^^^^ 9^St &°': iRy^ .i tV'fKY/ .^vsc^e) "' ti ^^•^-SiSy' W-ifS. €..&...- I-n iKios^y' :S, . •'.'¥. ^^-r^ MA'ci^ •^" lAt^ 3. Additional Cominissioner, Customs &. Central Excise, Dhamtari Road, Raipur(CG). The Superintendent, Ceatra! Excise & Customs, Range-IV. Civil Lines, Raipuir<CG) ... .Respondents Writ Petition under Article 227 ofthe Constitution oflndia for issuance ofwrit in the nature ofcertiorari or any other appropriate writ, order or direction for quashing and setting aside the impugned Order-in-Appeal No. 113/RPR-V2007 dated 9.5.2007 passed by the leamed Commissioner (Appeals), Central Excise, Raipur-I in Appeal No. 41-CE/RPR/APPL.V2007 nf ^FlR^ ^. HIGH COURT OF CHHATTISGARH AT BJLASPUR PETITIONER WRIT PETITION (T) No. 6025 of2007 M/s. Uniworth Ltd. RESPONDENTS VERSUS Commissioner of Central (Appeals) Raipur & 2 Others. ^ Excise Post for pronouncement ofjudgment & order on .ffi. day ofNovember, 2011. Sd/- Satish K. Agnihotri Judge c"\ .i^ /'S9&, 1 ^•A;^E^^i t3i -:^/ <®. l^-^ •F. mOH COURT OF CHHATTISGARH AT BILASPUR PETITIONER WRIT PETITION (T) No. 6025 of2007 M/s. Uniworth Ltd. RESPONDENTS VERSUS Commissioner of Central (Appeals) Raipur & 2 Others. Excise PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Aenihotri. J. Present: Shri Anil Das Kuldeep, Advocate for Shri B.P.Mishra, Advocate for the petitioner. Shri Manish Sharma, Advocate for the respondents. ,)% (Delivered on ..ff.. day of November, 2011) 1. Challenge in this petition is to the legality and validity ofthe order dated 09.05.2007 (Annexure P/l) passed by the Commissioner, Customs & Central Excise (Appeals - I) Raipur, {for short 'the CCE(A)} in Appeal No. 41/CE/RPR/Appl.I/2007 and fiuther, to restore the said appeal and hear the same without insisting on pre- deposit. 2. The CCE(A), by order dated 09.05.2007, dismissed the appeal No. 41/2007 which was preferred against the Order-in-Original No. 325- 327/CH: 51/RPR/ADC/06, dated 30.11.2006 passed by Additional Commissioner, Central Excise Hqrs. Raipur. The petitioner, vide interim order No.04/RPR-I/2007 dated 20.03.2007, was directed to pre-deposit an amount of Rs. 25 lacs on or before 12.04.2007. The appeal was directed to be listed on 25.04.2007, subject to compliance ofthe order dated 20.03.2007. The petitioner requested for extension < ''^* c ^-:^ <& »b 8-' ofdate ofpre-deposit vide letter dated 10.04.2007. It appears fhat time was farther extended until 12.04.2007. Till 25.04.2007, the petitioner failed to comply with the direction to deposit the amount of Rs. 25 lacs and further failed to appear on that date. Thus, the appeal was dismissed on account of failure to pre-deposit an amount of Rs. 25 lacs and failure to appear before the appellate authority for hearing. 3. On perusal of the record, it appears that against the interim order N0.04/RPR-I/2007 dated 20.03.2007, the petitioner preferred a petition before this Court on 11.05.2007 being W.P.(T) No.4897 of 2007 and no step was taken by the petitioner to get the said writ petition i.e. W.P.(T) No.4897 of 2007 listed and no interim order in respect ofthe stay ofthe order dated 20.03.2007 was granted by this Court. 4. The question involved herein is asto whether the CCE(A) was justified in dismissing the appeal for want of appearance and for want of pre- deposit ofthe amount required mandatorily. 5. The Additional Commissioner, Central Excise, disallowed Cenvat credit of Rs. 1,38,59,015/- wrongly availed by the petitioner and a penalty and interest of Rs. 25 lacs was imposed. The petitioner preferred an appeal under the provisions of section 35 of the Central Excise Act , 1944 (for short 'the Act, 1944'). The CCE (A), hearing the application for interim relief, by order dated 20.03.2007 (Annexure P/12) directed the appellant to pre-deposit an amount of Rs. 25 lacs towards the disallowed Cenvat credit and consequent amounts payable under section 35F ofthe Act, 1944. Initially, it was directed to deposit the amount on or before 12.04.2007, which it •< ^ K ife "t ^ appears was extended and ultimately, till the date fixed for hearing on 25.04.2007. The petitioner, without pre-depositing the above stated amount, while seeking extension of time, stated that the petitioner has filed a writ petition before the High Court of Chhattisgarh, but no stay order was produced and further, it appears that the petitioner has not indicated fhe number of the writ petition in support of his contention before CCE (A) except the statement that he had filed a writ petition. It was further contended by the petitioner for exemption ofpre-deposit that the petitioner was declared a sick unit by B.I.F.R. vide order dated 30.01.2006 and fhe company was facing acute financial crisis. 6. The CCE (A) relying on the decision ofMetal Box India Ltd. v. C.C.E. Mumbai held that from payment ofpre-deposit covered under section 35F ofthe Act, 1944, fhe company does not get any protection under section 22 of the Sick Industrial Companies, (Special Provisions) Act, 1985. Accordingly, the appeal was dismissed for want of pre-deposit and for want ofappearance also. 7. Section 35F of the Act, 1944 prescribes for deposit of the duty demanded or penalty levied when a person is desirous of appealing against such decision or order. However, proviso to section 35F ofthe Act, 1944 confers discretion to dispense with such deposit or reduce the amount of deposit ifthe CCE (A) or the Tribunal is ofthe opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person. In the case on hand, having regard to the faets situation of the case, the Additional Commissioner, Central Excise, by order dated 30.11.2006, which was impugned before the ' (2003) 155 ELT 13 (SC) ^ 1'^. € e ^' ?E': y appellate aufhority, disallowed the Cenvat credit amounting to Rs. 1,38,59,015/- andpenalty ofRs. 25 lacs was also imposed. 8. The Supreme Court, in Metal Box India Ltd.l, in identical facts ofthe case, held as under: "Section 22 of the Sick Industa-ies Act, provides relief in regard to the proceedings which relate to (a) wmding up of the industi-ial company; (b) execution, distress or the like against any of the properties of the industrial company, (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee m respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F o.f the Central Excise Tax Act, 1944 does not fall under any ofthe above- mentioned categories in Section 22 of the Sick Industries Act." 9. The petitioner failed to produce any order passed in W.P. (T) No.4897 of 2007 filed by the petitioner challenging the interim order No.04/RPR-I/2007 dated 20.03.2007 of pre-deposit indicating that there was any stay, from this Court, of the order passed by the CCE (A) to pre-deposit the amount of Rs. 25 lacs. On perusal, it is found that W.P. (T) No.4897 of 2007 is still pending consideration without any interim order. It is well settled that unless the order impugned is stayed or modified by the superior authority/court, the order is binding upon the parties. lO.Having regard to the facts situation ofthe case, the quantum ofthe impugned direction to deposit an amount of Rs. 25 lacs, cannot be held as exce,ssive or arbitrary. Further, the direction whereby the petitioner was directed to deposit an amount ofRs. 25 lacs is not under ^ Amit ^ challenge in this petition. The impugned order passed by the appellate authority isjust, proper and does not warrant any interference. ll.In view ofthe foregoing and for the reasons stated hereinabove, the writ petition is dismissed. 12.No order asto costs. Satish K. Agnihotn Judge fr!'v