Esab India Ltd vs Commissioner Of Central Excise, Nagpur
- Citationappeal No. SVS/365/NGP-II/2005 dated 18.10.2005 passed by the Commissioner of Central Excis
Ratio decidendi
The rule this decision rests on
Under the first proviso to Section 35C of the Central Excise Act, adjournments of the hearing of an appeal may not be granted to a party more than three times; a request for a further adjournment is therefore one the Tribunal is not permitted to grant under Section 35C(1). Notwithstanding that statutory bar, the Tribunal may, in the interest of justice, grant a final adjournment on terms, namely upon the appellant depositing a specified cost before the next date of hearing and reporting compliance on that date, with the stated consequence that non-compliance results in automatic dismissal of the appeal under Section 35C(1).
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Appeal E/161/06-Mum arising out of order-in-appeal No. SVS/365/NGP-II/2005 dated 18.10.2005 passed by the Commissioner of Central Excise (Appeals), Nagpur.
Date of hearing 9.9.2015 Date of decision 9.9.2015
Esab India Ltd. Applicant Represented by: None
Versus
Commissioner of Central Excise, Nagpur Respondent Represented by:
Mr. H.M. Dixit,
Assistant Commissioner (AR)
CORAM
Mr. P.K. Jain, Honble Member (Technical) Mr. S.S. Garg, Honble Member (Judicial)
ORDER No: ..
Per: P.K. Jain
This appeal was filed by the appellant in 2006 and a stay application was also filed at the same time. This Tribunal vide order No. S/895/WZB/06/C-III/EB dated 30.5.2006 allowed the stay application as out of a total demand of Rs.21 lakhs determined by the lower authority, a sum of Rs.10 lakhs was deposited by the appellant. Extension of stay was granted from time to time. Application for extension came to be considered last on 20.10.2014. The extension of stay was allowed. However, the case was fixed for final hearing on 28.11.2014 and it was made clear that the appellant shall not seek adjournment in the matter. It is seen from the records that thereafter the case has been listed on 28.11.2014, 19.2.2015, 20.4.2015, 27.5.2015, 7.7.2015, 16.7.2015, 20.8.2015 and 9.9.2015. Out of the above mentioned eight dates, at least on 19.2.2015, 27.5.2015, 7.7.2015, 20.8.2015 and today i.e. 9.9.2015, the case is being adjourned at the request of the appellant on some or the other grounds and the reason stated is that due to non-availability of the concerned person, the matter could not be briefed to their counsel. Thus, in nutshell, during the last almost a year they have not been able to brief the counsel.
2. We find that the first proviso to Section 35C of the Central Excise Act provides that no such adjournment shall be granted more than three times to a party during hearing of the appeal. As mentioned earlier, at least four adjournments have already been granted to the appellant. Today the request is for the fifth adjournment which, strictly speaking, is not permitted under Section 35C(1). However, in the interest of justice, we are adjourning the matter as a last chance to 30th September 2015 subject to the appellant paying a cost of Rs.5,000/- and the said amount will be deposited by the appellant before the next date of hearing, with the jurisdictional Commissioner of Central Excise and report compliance on the date of hearing i.e. 30th September 2015. It may also be noted that failure to deposit the said amount will automatically result in the dismissal of the appeal in view of Section 35C(1) of the Central Excise Act.
(Pronounced in Court)
(S.S. Garg) Member (Judicial) (P.K. Jain) Member (Technical)
tvu 2 2 2
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