2017 (10) TMI 283 - HC - Central Excise

Restoration of appeal - appeal was dismissed for non-compliance of the pre-deposit order - Held that - the Appellants have not made any effort to attend the hearings before the Appellate Tribunal and / or place the recommendation of the BIFR for winding up of the Appellants Company on 15th November 2006 before the Appellate Tribunal when the stay application came up for hearing on 12th January 2007 - It appears that the Appellants were only interested in prolonging the proceedings as also noticed by the Appellate Tribunal and the Appellate Tribunal had given ample opportunities to the Appellants for complying with their prior orders. The Appeal had been dismissed in March 2007 but the Appellants chose to file the Application for restoration of Appeal only in April 2013 i.e. over six years later and the Appellants have not been able to justify the delay in preferring the restoration application. It is not open for the Appellants to contend that they were not aware of the dismissal of their Appeal for non-compliance - appeal dismissed decided against appellant.

Issues:
Challenge to order passed by Customs, Excise and Service Tax Appellate Tribunal - Non-compliance with pre-deposit order - Application for restoration of Appeal - BIFR recommendation for winding up - Delay in filing restoration application.

Analysis:
The Appellant challenged the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad, dated 21st October 2014. The Appellants, a company registered under the Companies Act, 1956, were engaged in manufacturing Partially Oriented Yarn (POY) and were declared a sick industrial company by the Board of Industrial and Financial Reconstruction (BIFR) in 2003. Subsequently, they faced investigation for non-payment of National Calamity Contingent Duty (NCCD) on Polyester Filament Yarn. Despite summons and show cause notices, the Appellants failed to comply with the demands and penalties imposed by the authorities. The Appellants' factory had been closed since 2004, leading to challenges in receiving notices and attending hearings. The Appellate Tribunal dismissed their Appeal in March 2007 due to non-compliance with pre-deposit orders. The Appellants then filed an application for restoration of the Appeal, citing reasons such as being a sick industrial company and facing winding-up proceedings. However, the Tribunal found that the Appellants had not made efforts to attend hearings or present BIFR recommendations during the proceedings. The Tribunal noted the delay in filing the restoration application, which was submitted over six years later in 2013. The Tribunal concluded that the Appellants seemed more interested in prolonging the proceedings rather than complying with orders, leading to the dismissal of the Appeal.

The Appellants argued that they were unable to comply with the pre-deposit order due to being declared a sick industrial company and facing winding-up proceedings recommended by BIFR. They contended that the factory closure since 2004 hindered their ability to receive notices and attend hearings. The Appellants emphasized their inability to pay the pre-deposit amount, especially after their assets were taken over by ARCIL following the winding-up order. However, the Respondent supported the Tribunal's decision, asserting that the Appellants had not shown diligence in attending hearings or presenting relevant information, such as BIFR recommendations, during the proceedings. The Tribunal found that the Appellants had failed to justify the delay in filing the restoration application and had not made significant efforts to comply with previous orders. The Tribunal dismissed the Appeal, stating that the Appellants had ample opportunities to adhere to the orders but chose to prolong the proceedings instead.

In the judgment, the Court concurred with the Tribunal's findings, emphasizing that the Appellants had not made sufficient efforts to attend hearings or present crucial information, such as the BIFR recommendations, during the proceedings. The Court noted the delay in filing the restoration application and agreed that the Appellants appeared more focused on prolonging the proceedings rather than complying with orders. Ultimately, the Court found no merit in the Appeal and dismissed it, with no order as to costs.

← Previous Next →