IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.4957 of 2011 ====================================================== S.D.Compaque Poly India (P) Limited, A Company incorporated under the Companies Act, 1956 having is registered office at 403, Kashi Place, New Dak Bungalow Road, Patna G.P.O., P.S. Kotwali, Patna – 800 001 through its Managing Director Shri Sanjay R. Kumar son of Sri Raghunath Prasad, aged about 44 years, resident of Balkishunganj, P.O. Gulzarbagh, P.S. Alamganj, in the town and district of Patna. .... .... Petitioner Versus 1. The Union of India through the Secretary, Department of Legal Affairs, Ministry of Law & Justice, Government of India, A-Wing, Shastri Bhawan, New Delhi – 110 001. 2. The Customs Excise and Service Tax Appellate Tribunal, 7th Floor, 169 A.J.C. Bose Road, Kolkata through Assistant Registrar. 3. The Commissioner of Central Excise, Central Revenue Building, Bir Chand Patel Path, Patna. 4. The Superintendent, 1st Floor, Suryanchal, Bhadraghat, Central Excise Range, Patna City, Patna. .... .... Respondents ====================================================== Appearance : For the Petitioner : Mr. Jitendra Singh, Senior Advocate with Mr. Satyabir Bharti, Advocate For the Respondents : Mrs. Archana Meenakshee, Senior Standing Counsel Mrs. Archana Sinha, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 4. 6.5.2011. With the consent of the learned advocates the petition is heard and decided today. This petition under Article 226 of the Patna High Court CWJC No.4957 of 2011 (4) dt.06-05-2011 2 Constitution is filed by S.D. Compaque Poly India (P) Ltd., a manufacturer of Polythene film and sachet, against the order dated 10th December 2010 made by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata (hereinafter referred to as ‘the Tribunal’) in Miscellaneous Application No. 372 of 2010 (ROA). On 10th April 2002, a show cause notice and demand was issued against the petitioner by the respondent Central Excise authorities. By order dated 27th November 2002, made on Adjudication proceeding, the authorities imposed the fine and penalty upon the petitioner. After a round of litigation and pursuant to the order of remand made by the Tribunal, by order dated 22nd August 2008 made by the Commissioner of Excise seized finished goods valued at Rs.11,61,265/- was ordered to be confiscated; a penalty for the like amount was imposed; demand of excise duty in the sum of Rs.1,06,388/-, Rs.68,28,580/- and Rs.6,40,000/- was confirmed and penalty of Rs.1,06,388, Rs.68,28,580 and Rs.6,40,000/- was imposed. Feeling aggrieved the petitioner preferred Excise Appeal No.623 of 2008 before the Tribunal. The said appeal came to be dismissed on 24th May 2010 for failure of the petitioner to remove the defects and to deposit the amount of excise duty, penalty etc. as envisaged by Section 35F of the Central Excise Act, 1944. Pursuant to the said order of dismissal for non removal of defects. The petitioner filed above restoration Application No. Misc./273/2010(ROA) before the Tribunal. The Tribunal dismissed the said application on 10th December 2010. Patna High Court CWJC No.4957 of 2011 (4) dt.06-05-2011 3 On the facts and in the circumstances of the matter, the petition is allowed. The impugned order dated 10th December 2010 made by the Tribunal in Misc./273/2010(ROA) is quashed and set aside. The Misc. Application is allowed. The Excise Appeal No. 623 of 2008 is restored on the files of Customs, Excise and Service Tax Appellate Tribunal, Kolkata. The appeal will be heard and decided on merit. This order is made on condition that the petitioner will remove the defects within one month from today. Unless, an order of waiver is made by the Tribunal on the application made by the petitioner, the petitioner will deposit the amount of Excise Duty and penalty as per the directions issued by the Commissioner of Excise within two months from today. Within one month from today the petitioner will pay a cost of Rs.15,000/- (fifteen thousand) to the Department of Customs and Central Excise at Patna. It is further clarified that in the event any of the above conditions is not complied the Excise Appeal No.623 of 2008 preferred by the petitioner shall stand dismissed for non prosecution. Pawan/- (R.M. Doshit, CJ) (Jyoti Saran, J)