JUDGMENT
G.S. Singhvi, J.
1. In this petition, the petitioner has prayed for quashing order Annexure P. 8, dated 5-7-2001 by which Customs, Excise and Gold (Control) Appellate Tribunal (for short, ‘the Tribunal’) dismissed the appeal filed by it against order dated 30-11-2000 passed by Commissioner of Central Excise, Chandigarh (respondent No. 1). It has further prayed for issuance of a direction to respondent No. 1 to decide the appeal of the petitioner without insisting on deposit of the disputed amount.
2. The petitioner is a partnership concern engaged in the manufacture of hot rolled products of non-alloy steel falling under Chapter Heading No. 72 of the Schedule to Central Excise Tariff Act, 1985. By an order dated 18-5-1998, respondent No. 1 determined the annual capacity of the petitioner. However, the petitioner did not pay excise duty in terms of order Annexure P. 1. Consequently, show cause notices dated 25-9-1998 and 30-10-1998 were issued to it by Assistant Commissioner of Central Excise, Patiala. During the pendency of the show cause notices, respondent No. 1 initiated recovery proceedings against the petitioner and issued attachment notice Annexure P. 2/B. The petitioner challenged the notice of attachment by filing an appeal. By an order dated 20-6-2000, the Tribunal remanded the case to respondent No. 1 for fresh determination of the annual production capacity of the petitioner. Thereafter, respondent No. 1 passed order dated 30-11-2000 for re-determination of the annual production capacity of the petitioner. The petitioner challenged that order as well by filing appeal before the Tribunal. It also applied for stay of the demand of Rs. 11,57,077/-created by respondent No. 1. By an order dated 24-4-2001, the Tribunal dismissed the stay application for want of prosecution because no one had appeared on behalf of the petitioner. The main appeal was adjourned to 22-6-2001 with the direction that the petitioner shall comply with the provisions of Section 35F of the Central Excise Act, 1944 (for short, ‘the Act’) within 6 weeks. However, the petitioner did not deposit the disputed amount as per the requirement of Section 35F of the Act. Consequently, the Tribunal dismissed the appeal of the petitioner vide order dated 22-6-2001, the relevant extracts of which are reproduced below :
“1. The matter was called. Shri Deepak Bajaj, Proxy Counsel submits that the Stay order dated 24-4-2001 has not been complied with. He submits that there was no qualification and so the stay application was filed by mistake.
2. We find that in the stay application, a demand of Rs. 11,57,077.00 had been indicated against para 2 of the stay application and the stay application was filed in the Registry, which was received on 20-3-2001.
3. As the stay application has already been dismissed for non-compliance with the provisions of Section 35F of the Central Excise Act, 1944.
4. Shri Deepak Bajaj, Proxy Counsel prays for one month time.
5. If the terms of the stay order dated 24-4-2001 are complied with, then the appellants will be at liberty to pray for restoration of their appeal.”
3. The petitioner has challenged the impugned order mainly on the ground that the appeal filed by similarly situated units were finally allowed by the Tribunal vide order Annexure P. 10, dated 27-8-2001.
4. The respondents have defended the impugned order by contending that the petitioner’s failure to deposit the disputed amount provided sufficient justification for dismissal of its appeal.
5. We have heard learned Counsel for the parties and perused the record.
6. In our opinion, the impugned order does not suffer from any legal infirmity warranting interference by this Court under Article 226 of the Constitution of India. It is an undisputed position that the stay application filed by the petitioner was dismissed for non-prosecution and the main appeal was dismissed because it failed to deposit the disputed amount as per the requirement of Section 35F of the Act. In this view of the matter, we would have dismissed the writ petition, but keeping in view the fact that the appeals filed by similarly situated units have been allowed by the Tribunal, we deem it proper to give one opportunity to the petitioner to deposit the disputed amount with a direction to the Tribunal to hear its appeal on merits.
7. Hence, the writ petition is disposed of in the following terms :
(i) Within 2 months from today, the petitioner shall deposit the amount determined by the competent authority in pursuance of order dated 30-11-2000 passed by respondent No. 1. (ii) If the petitioner deposits the amount within the time specified, then the impugned order shall become inoperative and ineffective and the appeal filed by it shall stand restored and decided on merits. (iii) If the petitioner fails to deposit the amount in terms of (i) above, then no further action will be required to be taken by the Appellate Authority and the writ petition shall be deemed to have been dismissed. 8. Copy of the order be given dasti on payment of the fee prescribed urgent application.