TaxTMI 
TaxTMI 
2004 (8) TMI 277
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....-7-1991 directed them to pre-deposit Rs. 75,000/- on or before 30-9-1991 and to report compliance. The amount of Rs. 75,000/- was not deposited by the appellants and therefore, the Tribunal by it's Order No. 612/91, dated 30-9-1991 dismissed the appeal. The applicant could not pre-deposit the said amount as their factory remained closed from February, 1989 which has resulted in crippling the financial activity. In the mean time Canara Bank initiated proceedings to realize Rs. 7 lakhs. The dispute with Canara bank was settled in the year 2000. The applicants could restart the factory only in the month of June, 2002. As the factory remained closed for 13 years from 1989 to 2002, and they had no other source of income, it took time to arrange for finance after the opening of the factory. They pre-deposited amount of Rs. 75,000 on 3-1-2003. The application for restoration came up for hearing on 18-3-2004 and under Order No. 113/2004, dated 18-3-2004, the applicants were directed to deposit the entire adjudicated amount by 11-5-2004 for considering their application. They paid another amount of Rs. 75,000/- on 27-4-2004. By miscellaneous order No 264/2004, dated 11-5-2004 further times ....
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....applicants filed petition for restoration of appeal dated 24-11-2003, on the ground that the applicants have preferred appeal before the Tribunal along with stay application and the stay application was heard on 22-9-1994 and they were directed to pre-deposit a sum of Rs. 13 lakhs. They paid Rs. 1 lakh and preferred petition for modification of order dated 22-9-1994. The Tribunal by it's order SV/M/118/95, dated 3-8-1995 modified the earlier order and directed the appellants to deposit Rs. 9 lakhs (including Rs. 1 lakh already paid as pre-deposit). They were given facility to deposit the amount of Rs. 8 lakhs in five monthly instalments of Rs. 1.5 lakh each and balance Rs. 50,000/- in the sixth instalment. However, they could not deposit the amount and the Tribunal dismissed their appeals for non-compliance of the pre-deposit under Order No. 16/96, dated 29-3-1996. The applicants pleaded that there was a lay-off in the factory which continued from January, 1996 to April, 1997 and during this period there was no person inside the factory and that is why they did not get any information regarding dismissal of the appeal. Recently they received a notice from Central Excise Department ....
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....6] wherein it was held that the pre-deposit was made by the applicants after a delay of more than 1½ years not being a reasonable delay cannot be condoned. He also relied on the decision of Supreme Court in the case of Income Tax Officer v. M.A. Mohammed Kunhi (AIR 1969 S.C. 430) and requested for dismissal of that applications. E/ROA/64-65/03 in Appeal Nos. E/408,409/98 Hamsons Steels & Alloys :- 8.The applicants M/s. Hamsons Steels and alloys Pvt. Ltd., in their application for restoration of the appeal have stated that they had filed Appeal Nos. E/408/98 and E/409/98 respectively on behalf of Hamsons Steels and Alloys Pvt. Ltd. and Shri Shafiqur Rehaman it's Managing Director. They were asked to pre-deposit a sum of Rs. 15 lakhs and Rs. 10,000/- respectively vide Stay Order No. S/376/77/98, dated 14-5-1998 within three months from the date of the Order. The Tribunal dismissed the appeal under it's order 1820-1821/99, dated 23-7-1999 for non-compliance of the stay order. The restoration application filed earlier by both the appellants was considered by the Tribunal under miscellaneous Order Nos. 46-48/2000, dated 3-2-2000 and rejected the application for restoration of the....
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....tiles, M/s. Sai Fabrics, Shri Venkataraman Printing and Dyeing Works, Dhanalakshmi Cloth and Dyeing Industries. 11.M/s. Gauthami Textiles Industries and Sales Corporation had filed Appeal No. E/1265/98 along with stay application before Chennai Bench of CEGAT against OIO No. 3/98, dated 20-2-1998 passed by Commissioner of Central Excise, Visak. Tribunal under it's Stay Order No. 691/99, dated 6-5-1999 directed them to pre-deposit Rs. 10 lakhs. However the appellants did not pre-deposit the amount, hence by Final Order No. 3158/99, dated 20-12-1999, the appeal was dismissed for non-compliance under Section 35F of the Central Excise Act. The Final Order No. 3158/99, dated 20-12-1999 was recalled under Miscellaneous Order No. 75/2000, dated 9-2-2000 and the applicants were given further time to pre-deposit the amounts and report compliance by 6-4-2000, the time was further extended several times on different occasions. Finally since the appellants failed to deposit the amount the appeal, was again dismissed vide Order Nos. 343-346/01, dated 12-10-2001. Restoration application was filed on 17-10-2002. Thereafter, the case has been adjourned on various occasions for non-compliance. ....
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....storation of the original appeal. They are small hand processors running labour oriented units and could not mobilize the amount for pre-deposit. They pleaded that the amount deposited by them may be considered as enough for compliance of stay order. 15.Shri Venkataraman Printing and Dyeing Works in their application filed on 17-10-2002 for restoration of appeal have stated that they have deposited Rs. 13,000/- till 11-9-2002 and are filing application for restoration of appeal. They are small hand processors running labour oriented unit who could not mobilize to pre-deposit amount and pleaded that the appeal may be restored. 16.Shri K.S. Ravi Shankar learned Advocate appeared for all the four appellants namely M/s. Gauthami Textiles, Shri Dhanalakshmi Cloth Dyeing and Printing Works, M/s. Sai Fabrics and Shri Venkataraman Printing and Dyeing Works. He pleaded that since appeal of M/s. Dhanalakshmi Cloth Dyeing and Printing Works abates, he is not pressing for its restoration. He is only pleading for the other three applicants. Shri Ravishankar pleaded that M/s. Gauthami Textiles have complied with the stay order by depositing the full amount of Rs. 10 lakhs as on 28-6-2004. ....
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....to them. If they would have been genuinely pursuing the matter they would have taken precautions for mobilizing the funds and depositing the amount in time but despite giving them large number of opportunities they did not comply with the stay orders of the Tribunal. Therefore these appeals should not be restored as the appellants instead of paying the disputed amounts were taking the things very easy and had not even shown their alertness in filing the restoration application in time by complying with the terms of pre-deposit. Therefore all these miscellaneous applications should be dismissed. He relied on the decisions of the Tribunal in the following cases :- (1) Inventa Electronics Pvt. Ltd. v. CCE, Pune (I) [2002 140) E.L.T. 218] wherein it was held that appeal cannot be restored after 4 years of passing of stay order on the ground that applicants' financial position has improved especially when deposit not fully made and bona fides remain doubtful. (2) Sarvodaya Laboratories v. CCE, Mumbai [2002 (145) E.L.T. 647] wherein it was held that stay order not complied with by appellants. Deposi....
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.... worth Rs. 32,33,572/- vide detention order dated 12-5-2000. In view of this fact, they have deposited the entire amount of duty demanded and therefore pleaded that their appeal may be restored and pre-deposit of interest and pre-deposit of Rs. 2 lakhs may be waived. Shri L. Narasimha Murthy learned SDR opposed the restoration the ground that penalty amounts have not been deposited. M/s. Suha International filed miscellaneous application C/ROA/7/04 in Appeal No. C/5/01 for restoration of the appeal. 19.Shri S. Raghu learned Advocate appearing for the applicants pleaded that they had filed appeal before the Tribunal against Order No. 34/2000 Commissioner/Customs/Adjn, dated 27/29-9-2000 under which the Commissioner demanded duty draw back of Rs. 91,746/- from M/s. Suha International and imposed a penalty of Rs. 2 lakhs on Shri P.K. Ahmed proprietor of M/s. Suha International. The stay application filed by the applicants was decided under Stay Order No. 2000-2001, dated 12-3-2001. They were directed to deposit the draw-back duty amounting to Rs. 91,746/- by 30th April, 2001. The period was further extended up to 1st June, 2001 but since the applicants did not deposit the amount....
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.... such conditions as it may deem fit to impose so as to safeguard the interest of revenue. Thus it is clear that the Tribunal has been given power to see that undue hardship is not caused to person who has filed appeal in respect of duty of central excise demanded or penalty imposed but the Tribunal has also to see and safeguard the interest of revenue. Keeping these points in mind, now we examine the restoration of appeal applications field by the respective applicants. 21.We find that the applicant M/s. Jose Tyrerub Industry has filed the restoration application on 10th March, 2003, giving the ground for restoration that by Order No. 612/91, dated 30-9-1991 their appeal was dismissed for not pre-depositing the amount of Rs. 75,000/- on or before 30-9-1991. The reason given by them for non-compliance is that their factory remained closed from February, 1989 onwards and Canara Bank initiated proceedings to realize Rs. 7 lakhs from them. We find that the same grounds was given by them before the Tribunal in 1991 when the order for pre-deposit was passed under Stay Order No. 382/91 and after considering this ground only, the Tribunal asked them to deposit the amount of Rs. 75,000/-....
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....mounts then only they could know about the dismissal of the appeal. The appellants have now deposited the full disputed amount. Therefore considering the fact that substantial justice should not be denied on technical consideration, we are of the view that these three appeals be restored to their original numbers for decision on merit. 23.We find that M/s. Hamsons Steels and Alloys were directed to pre-deposit an amount of Rs. 15 lakhs vide Stay Order Nos. S/376-377/98, dated 14-5-1998, within three months from the date of the order. Since they did not comply with this, extension of time was granted to them by miscellaneous Order No. 638/98, dated 21-10-1998 and Miscellaneous Order No. 35/99, dated 5-1-1999, but they did not comply with the stay order. The appeals were dismissed vide Final Order Nos. 1820-1821/99, dated 23-7-1999 under Section 35F of Central Excise Act. Thereafter both the appellants namely M/s. Hamsons Steels and Shri Shafikur Rehaman filed restoration applications which were decided by Miscellaneous Order Nos. 46-48/2000, dated 3-2-2000 by which the appeal of Shri Shafikur Rehaman was restored to it's Original No. E/409/99, as he had pre-deposited the amount. ....
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....der Order Nos. 343-346/01, dated 12-10-2001, they did not come for restoration immediately by complying with the stay order but took one year to file the restoration application and again did not comply with the stay order. If after such a long delay they are coming for restoration of the appeals, it was necessary for them to pre-deposit the entire adjudicated amount as has been held in case of Master Recording Company v. CCE, Chennai (supra). But instead of depositing the entire adjudicated amount they only deposited the amount of pre-deposit which was fixed for them in 1999. Thus we find that the appellant instead of seriously trying to deposit the amount and coming forward with proper reason for non-pursuing the restoration application after dismissal of the appeal cannot take a plea of substantial justice as the Tribunal has also to see the revenue interest. It was also made clear to them that these cases will be considered only when the entire adjudicated amount is deposited. However, since the adjudicated amounts were not deposited these applications are also rejected. They cannot take undue advantage of getting the appeal restored whenever convenient to them. If they would h....