1999 (3) TMI 249

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....ad been dismissed on 13-5-1997 for non-compliance of the provisions of Section 35F. He submits that in view of the said observation of the Bench, the appellants have now filed a ROA application for restoring their appeals. He further submits that the appellants have a very strong case on merits and for inadvertant reasons they could not take up the plea of financial hardship at the time of filing the original stay petition. He also draws attention to the order passed by the Hon'ble High Court of Delhi on 4th November, 1997 in which the Hon'ble High Court had observed that if the petitioner (present appellant) is raising any contention which the petitioner did not have the opportunity to raise before the Tribunal then they are at liberty to ....

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....ailed to raise the plea of financial hardship at the time of filing their original stay petition, they could not take up the plea subsequently at this stage. On merits of the case also, he draws attention to para 3 of the stay order dated 6-1-1997 in which the Bench had observed that after careful consideration of the rival submissions, the appellants had a prima facie case arguable on merits. It was on that basis the Bench had directed the appellants to deposit a sum of Rs. 16 lakhs towards duty and Rs. 1 lakh towards penalty within a period of eight weeks from the date of receipt of the order. The appellants have not complied with the said direction of the Tribunal and, therefore the Bench had by its subsequent order dismissed the appeal ....

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....pplication for rectification of mistakes subsequent to the passing of that order which has not been done. He, therefore pleads for dismissal of the ROA application. 3. We have considered the submissions made before us. We observe that as a matter of record, the appellants had not taken the plea of financial hardship at the time of filing original stay petition. The stay petition was considered and order was passed directing them to pre-deposit an amount of Rs. 16 lakhs towards duty demand and Rs. 1 lakh towards penalty. Argument presently advanced by the appellants is that even at the time of filing stay petition they were having financial difficulty and the said plea was not taken because the earlier Counsel felt that their stay pe....