THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN W.P.NO.29006 OF 2009 31-12-2009 BETWEEN; M/s S.D.V.Steels Limited, rep. by its Managing Director and two others ...Petitioners vs. The Commissioner of Customs and Central Excise, Guntur and another ...Respondents THE HONOURABLE SRI JUSTICE GODA RAGHURAM AND THE HONOURABLE SRI JUSTICE RAMESH RANGANATHAN W.P.NO.29006 OF 2009 ORAL ORDER: (Per GR,J) The writ petition is primarily directed against the order dated 21-12 2009/14-12-2009 rejecting the application No.E/Misc./514-516/2009 i Appeal No.E/13-15/2009. The first petitioner is engaged in the business of manufacture of Mil steel ingots. The petitioner availed the benefits under notification No.16/0 dated 03-03-2000 and 17/01 Customs dated 01-03-2001 i.e., duty toward import benefits. On the basis of search operations conducted in th premises of the petitioner and the material gathered thereat, a show caus notice was issued to the petitioner on 18-08-2004 alleging that th petitioner had imported certain quantity of melting iron scrap under the tw notifications but had failed to utilize the same for conversion into MS ingots. A differential duty as specified was proposed to be levied as als penalty in an equal sum. After a due process of hearing afforded to th petitioner, the 1st respondent by the order dated 22-05-2008 confirmed th proposal with regard to duty and penalty component and interest unde Section 11 AA and 11 AB of Central Excise Act,1944 apart from persona penalty on the Managing Director and Director of the Company (who ar petitioner Nos.2 and 3). The petitioners preferred an appeal against th order of the 1st respondent above to the 2nd responden Customs Excise & Service Tax Appellate Tribunal on 02-01-2009 an along therewith an application for waiver of pre-deposit of the duty an penalty. The petitioner contends that on 06-10-2009 in the context of th counsel for the petitioner not attending the court on account of ill-health th 2nd respondent-Tribunal nevertheless on 08-10-2009 passed an orde directing the deposit of the entire duty and 10% of the penalty as condition precedent for entertaining the substantive appeal. Against thi order, the petitioner preferred an application for recall which was rejecte by the order impugned dated 21-12-2009/14-12-2009 inter alia on th ground that the 2nd respondent had no jurisdiction to recall its order in view of the decision of the Karnataka High Court in CEE, Bangalore-III Vs McDowell & Co. Ltd ( 186 ELT 145) also the 2nd respondent recorde that as the grant of stay was discretionary and it had the entire submissio of the petitioners’ on merits no interference was called for. It appears from the record that the earlier order communicated on 28 10-2009 directing deposit of entire duty and 10% of the penalty wa passed in the absence of petitioners’ counsel on the relevant date o hearings namely 06-10-2009 and 08-10-2009 in view of the asserted il health of the counsel as supported by medical certificates, the petitioner did not therefore have an adequate opportunity of presenting their point o view for the relief of a concession on the pre-deposit for preferring th appeal. In the circumstances above, after hearing the learned counsel for th petitioner and Sri B.Raj Kiran, the learned Standing Counsel for th Central Excise and Customs, the writ petition is disposed of at the stage o admission directing the petitioners to deposit 50% of the duty and 10% o the penalty as determined by the order of the 1st respondent dated 22-05 2008 within a period of three (3) weeks from today. On such deposi the 2nd respondent-Tribunal shall entertain the appeal an dispose of the same in accordance with law. In default of such deposit th appeal shall stand dismissed. No order as to costs. ______________ GODA RAGHURAM,J __________________ RAMESH RANGANATHAN,J 31st DECEMBER 2009. Note: Issue CC in two Days. (B/o) TSNR