2004 (7) TMI 423 - AT - Central Excise

Summary

Issues:
Application for restoration of appeal dismissed for non-compliance with Stay Order; Equating recovery by Central Excise authorities with pre-deposit under Section 35F of Central Excise Act.

Analysis:
The case involved an application for restoration of an appeal that was dismissed due to non-compliance with a Stay Order issued by the Tribunal. The appellant, represented by an advocate, argued that a penalty of Rs. 10 lakhs was imposed on them as the Executive Director of a company and that the Tribunal had directed the unit to deposit the same amount, but no specific amount was fixed for the appellant. The appellant had failed to comply with the Stay Order, resulting in the dismissal of the appeals. Subsequently, after the Central Excise authorities initiated recovery proceedings, the appellant borrowed funds and deposited the entire amount. The advocate requested restoration of the appeal based on this payment.

On the other hand, the Departmental Representative opposed the restoration, contending that the amount paid by the appellant for recovery proceedings could not be considered equivalent to the pre-deposit required under Section 35F of the Central Excise Act. It was highlighted that the appellant had previously filed two restoration applications, both of which were dismissed.

The Tribunal, after considering the arguments from both sides, noted that the appeals were indeed dismissed for non-compliance with the Stay Order. The appellant had previously attempted to restore the appeal, but those attempts were unsuccessful, including a Supreme Court Special Leave Petition (SLP) that was also dismissed. The Tribunal clarified that the recovery made by the Central Excise authorities under Section 11 of the Central Excise Act was for government dues and could not be equated with the pre-deposit requirement under Section 35F post-appeal dismissal. Consequently, the Tribunal rejected the restoration application, stating that the recovery by the authorities did not fulfill the pre-deposit obligation after the appeal had been rejected.

In conclusion, the Tribunal upheld the dismissal of the restoration application, emphasizing that the recovery made by the Central Excise authorities did not meet the pre-deposit criteria under the Central Excise Act after the appeal had been dismissed. The decision was based on the distinction between recovery for government dues and the specific pre-deposit requirement for appeals, ultimately finding no merit in the appellant's argument for restoration.