2002 (1) TMI 1109 - AT - Central Excise

Issues Involved:
1. Restoration of the appeal dismissed under Section 35F of the Central Excise Act.
2. Compliance with the Stay Order and subsequent High Court Interim Stay.
3. Validity of the dismissal order in light of the High Court's Interim Stay.
4. Difference of opinion between the Tribunal members on recalling the dismissal order.

Detailed Analysis:

Restoration of the Appeal Dismissed Under Section 35F of the Central Excise Act:
The appeal was initially dismissed for non-compliance with the Stay Order Nos. 250-253/01, dated 8-5-2001, which required the appellants to pre-deposit Rs. 15,00,000/- within three months. The appellants failed to report compliance by 5-10-2001, leading to the dismissal of the appeal under Section 35F of the Central Excise Act.

Compliance with the Stay Order and Subsequent High Court Interim Stay:
Before the Tribunal's order was issued, the appellants had approached the Hon'ble High Court of Judicature at Madras, which granted an Interim Stay on 26-9-2001, staying all proceedings before the Tribunal. The High Court noted that the petitioner had paid nearly Rs. 15,00,000/- against a demand of Rs. 40,27,050/- and cited financial hardship as the reason for seeking the stay.

Validity of the Dismissal Order in Light of the High Court's Interim Stay:
The Tribunal received the High Court's notice to remit all relevant records. The appellants' counsel argued that the appeal could not have been dismissed under Section 35F due to the existing Interim Stay by the High Court. The Tribunal acknowledged that the High Court's Interim Stay order was in effect on the date of the appeal's dismissal, making the dismissal order invalid.

Difference of Opinion Between the Tribunal Members on Recalling the Dismissal Order:
- Member (J): S.L. Peeran opined that the dismissal order under Section 35F should be recalled because the High Court's Interim Stay was in effect at the time of dismissal. He emphasized that the High Court had stayed all proceedings, and thus, the dismissal order was a nullity.
- Member (T): Jeet Ram Kait disagreed, arguing that the High Court had not directed the Tribunal to recall the dismissal order. He maintained that the miscellaneous application for recall was premature and non-maintainable since the High Court had not annulled or modified the Tribunal's Stay Order.

Points for Difference of Opinion:
The points of difference were referred to the Hon'ble President for a third member's opinion:
- Whether recalling the dismissal order under Section 35F was legal and proper.
- Whether the miscellaneous application for recall was premature and non-maintainable.

Majority Order:
Justice K.K. Usha, President, concluded that the dismissal order was vitiated by an error apparent on the face of the record since the High Court's Interim Stay was not brought to the Tribunal's notice. Therefore, the application for recall of the dismissal order was allowed, and the appeals were restored to their original numbers.

Conclusion:
In view of the majority order, the applications for recall of the Final Order Nos. 1755 to 1758/2001, dated 5-10-2001, were allowed, and the appeals were restored. The matter remains pending before the High Court regarding the Stay Order Nos. 250 to 253/2001, with further compliance to be reported in the first week of May 2002.

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