1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- CENTR.EXCISE APPEAL No. 4 of 2008 M/S RIVONA INDUSTRIES LTD. V/S CUSTOM,EXCISE & SERVICE TAX APPELL.& ORS Mr. ANAND PUROHIT, for the appellant / petitioner Mr. RAVI BHANSALI, for the respondent Date of Order : 23.4.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This application under Section 35-H of the Central Excise Act has been filed against the order of the learned Tribunal dt. 26.12.2006 and 2.4.2007. The matter comes up for admission, however, with the consent of the learned counsel for the parties, the matter is being finally decided at this stage itself as the controversy involved is very short. Against the order in original dated 8.3.2006 passed by the Commissioner (Appeals), Central Excise, Jaipur, the appellant filed an appeal before the learned Tribunal and along with that application the appellant also filed an application for waiver of the condition of pre- deposit. The learned Tribunal took up the application, and 2 passed an order dt. 26.12.2006 on that application, and directed the appellant to deposit the duty demand of Rs. 1.17 crores within a period of 12 weeks from that day, and also directed that the requirement for depositing the remaining amounts of penalty etc. shall remain waived. It also directed that in the event of failure to make the pre- deposit the appeal shall stand dismissed. Obviously, the appellant did not deposit the amount, and consequently vide order dt. 2.4.2007 the appeal has been dismissed. Submissions were made by the learned counsel about the financial crunch of the appellant on account of which he could not deposit the amount, and prayed that the order dt. 26.12.2006 be modified, and the requirement of deposit of entire amount be completely waived. In our view, the learned Tribunal has given detailed reasons for not waiving the requirement of deposit in its entirity, and has already given substantial relief by directing the appellant to deposit a sum of Rs. 1.17 crores. As such, this part of the order does not require any interference. Then, learned counsel submitted that the appellant is even now prepared to deposit the said amount, and the delay in depositing the amount be condoned, and the learned Tribunal be directed to decide the appeal on merits. 3 This prayer is seriously opposed by the learned counsel for the Revenue. However, looking to the totality of circumstances including the contention that the factory is said to be under possession of the Custom Authorities, and the appellant is under serious financial crunch, we think it appropriate to accede to this request of the learned counsel for the appellant. Accordingly, the appeal is partly allowed. The order dt. 2.4.2007 is set aside, and the time granted in the order dt. 26.12.2006 is extended by a period of another six weeks from today, and the matter is sent back to the learned Commissioner (Appeals) to decide the appeal on merits, if the said amount of Rs. 1.17 crores is deposited within a period of six weeks from today. It is further clarified that if now the appellant fails to deposit the amount of Rs. 1.17 crores within a period of six weeks from today, the present application under Section 35-H shall also stand automatically dismissed. Till then no coercive action shall be taken pursuant to the order in original. ( KISHAN SWAROOP CHAUDHARI ),J. ( N P GUPTA ),J. /Sushil/