2005 (12) TMI 132 - AT - Central Excise

Summary

Issues: Refusal of interim stay based on recovery of excise duty from customers, strategic timing of application under Sick Industrial Companies Act, incorrect statement made before High Court, consideration of waiver of pre-deposit, application rejection based on non-compliance with order.

Analysis:
1. The Tribunal initially refused interim stay on the basis that the applicant had recovered excise duty from customers, potentially invoking Section 11D of the Act. The timing of the application under the Sick Industrial Companies Act, made just after the interim relief was refused, raised suspicions of strategic maneuvering. Referring to the decision in Metal Box India Ltd. v. Commissioner of Central Excise, Mumbai, it was noted that pre-deposit payment under Section 35F of the Central Excise Act does not fall under the categories specified in Section 22 of the Act. The High Court acknowledged a misstatement regarding the listing of the appeal for compliance with the pre-deposit order, granting an opportunity to bring the appellant's approach to the BIFR to the Tribunal's attention.

2. The Tribunal, considering the precedent set by the Supreme Court in Metal Box India Ltd., found no evidence presented demonstrating the appellant's financial inability to satisfy government dues from its assets and investments. Consequently, the order dismissing the appeal for non-compliance was upheld, and the application seeking a recall of the order was rejected. The Tribunal pronounced and dictated the decision in the open court, affirming the rejection based on the lack of demonstrated financial position justifying a recall of the dismissal order.