2013 (10) TMI 713 - AT - Central Excise

Restoration of appeal - Delay and Laches Held that - The appellants appeal was rejected in December 2005 - The restoration application stands filed after eight years i.e. in 2013 - Apart from latches, when order passed by the Tribunal gets merged with the order of the Hon ble High Court and subsequently with the order of Supreme Court, to recall such final order passed by the Tribunal which already stands merged with the higher court, would amount to upsetting the order of Hon ble High Court as also Supreme Court which the Tribunal has no power or jurisdiction to do so. Restoration of Applications Impact of order of BIFR on order of CESTAT directing to make pre-deposit - Jurisdiction of BIFR - Whether BIFR has the jurisdiction to direct CESTAT to recall an order which has already been approved by the High Court and Supreme Court and has merged with their orders Held that - Following GLOBAL SYNTEX (BHL) LTD. Versus COMMISSIONER OF CENTRAL EXCISE, JAIPUR-II 2012 (11) TMI 867 - CESTAT, NEW DELHI - The BIFR passed the order on reference under Section 15(1) of Sick Industrial Companies (Special Provisions) Act, 1985 - the BIFR is not an appellate authority and as such we fully agree with the learned SDR that the direction contained in the said order of BIFR were not called for and are beyond their jurisdiction and power - The CESTAT is not bound to follow the same - Learned Advocate has not been able to show as to how BIFR is exercising as an appellate authority over the Tribunal and is directing to recall the order there was no reason to recall the final order - restoration application filed by the appellant is rejected Decided against Assessee.

Summary

Issues:
1. Restoration application for recalling the final order dismissing the appeal for non-compliance with the stay order.
2. Whether the BIFR-sanctioned scheme allows for recalling the order of dismissal.
3. Jurisdiction of BIFR to direct CESTAT to recall an order already approved by higher courts.

Analysis:
1. The appellant filed a restoration application seeking to recall the final order dismissing the appeal for non-compliance with the stay order. The Tribunal rejected the restoration application and subsequent challenges in High Court and Supreme Court were also dismissed, attaining finality at the highest court level.

2. The appellant argued that the BIFR-sanctioned scheme under the Sick Industrial Companies (Special Provisions) Act, 1985, empowered the Tribunal to recall the dismissal order. However, the respondent contended that the issue pertained to the finality of judicial proceedings already concluded at the apex court level, citing a previous Tribunal decision rejecting a similar direction from BIFR.

3. The Tribunal found that the matter had attained finality at the Supreme Court almost eight years prior, making it improper to reopen the case based on the BIFR-sanctioned scheme. The Tribunal emphasized that the order passed by the Tribunal had merged with the higher court orders, preventing the Tribunal from recalling the final order. Additionally, the Tribunal clarified that the BIFR's jurisdiction to waive duties or penalties did not extend to directing the recall of an order already approved by higher courts.

4. After considering the arguments and previous decisions, the Tribunal concluded that there was no valid reason to recall the final order dated 31.8.2005. Consequently, the restoration application was rejected, along with the miscellaneous application for listing the stay petition.

By analyzing the issues raised in the case and considering the arguments presented by both sides, the Tribunal upheld the finality of the judicial proceedings and declined to recall the order of dismissal based on the BIFR-sanctioned scheme, emphasizing the hierarchy of the judicial system and the limitations of BIFR's jurisdiction in such matters.