ORDER
P.G. Chacko, Member (J)
1. The lower authorities have demanded a total amount of duty over Rs. 18 lakhs from the assessee for the period July 2002 to April 2004 and have also imposed on them a penalty of Rs. 4.5 lakhs. The demand of duty is on account of denial of SSI benefit in respect of branded goods. The impugned orders of Ld. Commissioner (Appeals) are not on merits. The lower appellate authority has dismissed the assessee’s appeals on the sole ground of non-compliance with Section 35F of the Central Excise Act, 1944.
2. After hearing both sides and considering their submissions, we are of the view that the appeals before us should be finally disposed of at this stage. Accordingly, after dispensing with predeposit, we take up the appeals for disposal.
3. It appears from the records that the Commissioner (Appeals) had directed the party to predeposit a total amount of Rs. 5.1 lakhs under Section 35F of the Central Excise Act but the same was not deposited. Hence the appeals filed by the party were dismissed as above. Today ld. Counsel submits that the assessee had a strong prima facie case before the lower appellate authority and, therefore, waiver of predeposit and stay of recovery should have been allowed by that authority. It is submitted that, while directing the appellants to predeposit the above amount, ld. Commissioner (Appeals) was following the Stay Order No. 174/05 dated 1.3.05 passed by the Tribunal (this Bench) in appeal No. E/774/04 filed by the same party. We have perused the said stay order (available on the file of E/20/06) and we find that the said order was passed on identical facts for a different period and directed the assessee to predeposit an amount of Rs. 5 lakhs out of a total duty amount of over Rs. 18 lakhs. We are told that the said amount was deposited. In this context, however, ld. Counsel points out that the appellants’ factory was working when the above stay order was passed and the amount deposited. The factory has since been closed and, therefore, it is argued that waiver of predeposit and stay of recovery in respect of the entire amount of duty should be granted in view of the Andhra Pradesh High Court’s Order reported in 2005-TIOL-181-HC-HYD-CX. This plea is vehemently opposed by ld. Jt. CDR, who submits that the assessee has no case on merits and hence they should be directed to predeposit the amount covered by the interim order of the Commissioner (Appeals).
4. After considering the submissions, we are not impressed with the reliance placed by the Counsel on the Hon’ble High Court’s judgment whereby an equitable relief was granted by the Court to a party in a Writ Petition. We have no power to grant equitable reliefs. However, we have taken note of our own stay order No. 174/05 dated 1.3.05, wherein the same assessee was directed to predeposit Rs. 5 lakhs out of Rs. 18 lakhs and odd. We are told that, at that point of time, their factory was working. The factory is reportedly remaining closed and their Registration certificate has been surrendered. Apparently, this happened in 2005, when the assessee’s appeals were pending before the Commissioner (Appeals). The appellants have not placed on record any material to show that the above fact (closure of factory) was notified to the Commissioner (Appeals). Now that the appellant’s factory has been shown to be remaining closed since last year, we must appreciate the plea of financial hardships. Accordingly, the amount fixed by the Commissioner (Appeals) is reduced by 50% for the purpose of predeposit under Section 35F. The appellants are directed to predeposit Rs. 2.5 lakhs with the lower appellate authority within 8 weeks, whereupon the lower appellate authority will take up their appeals for disposal, on merits without insisting on further predeposit. Ld. Counsel for the appellants has undertaken that his client will co-operate with the lower appellate authority.
5. The impugned orders are set aside to enable the lower appellate authority to comply with the above direction. Appeals Nos. E/314 & 315/2006 stand allowed by way of remand.
6. Appeals Nos. E/20 & 21/06, which do not figure in today’s cause-list and have been called for by the Bench, are against the interim orders passed by the Commissioner (Appeals) and the same are dismissed as infractous. Even otherwise, such appeals against interim orders of the lower appellate authority are not maintainable in law.
(Order dictated and pronounced in open Court)