9911796707
TMI Blog1990 (5) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... emanded and the penalty levied, but instead, the appellants moved their application in terms of the Proviso to the said Section 35F for dispensing with the requirement of such deposit along with their appeal. The said application was registered as Stay Application No. E/Stay/406/84-D and after hearing both the parties the Tribunal vide its Stay Order No. 117/1984-D dated 25-5-1984 directed the appellants to deposit Rs.40,000/- in cash and execute a bond to the satisfaction of the Collector for the remaining amount of duty and penalty, with a bank guarantee for the balance of the duty amount only within 6 weeks from the date of the order making it clear that failing which the appeal will be liable to rejection in terms of Section 35F of the Central Excises and Salt Act; (ii) The appellants did not comply with the said Stay Order and instead they moved their application dated 16-7-1984 for modification of the stay order by dispensing with the requirement of the pre-deposit of the amount of Rs. 40,000/- and furnishing the bank guarantee as required in terms of the said stay order dated 25-5-1984. This was rejected by the Tribunal vide its Misc. Order No. 109/84-D dated 30-8-1984 aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eard and the said application was dismissed by the Tribunal vide its Misc. Order No. M-150/89-D dated 12-10-1989 and the case was listed for hearing on 9-4-1990; and (viii) On that date 9-4-1990 the departmental representative requested for the dismissal of the appeal in terms of Section 35F of the Central Excises and Salt Act, 1944 as the appellants did not comply with the said stay order dated 25-5-1984 passed by the Tribunal. The Bench agreed to that submission, but before doing so thought it proper to give 15 days notice to the appellants to show cause as to why their appeal be not dismissed for non-compliance of Section 35F of the Central Excises and Salt Act, 1944 and the case was ordered to be listed on 2-5-1990 for this purpose. The appellants still did not comply with the said stay order and instead in answer to the said show cause notice the appellants in their reply dated 26-4-1990 again requested for the waiver of the pre-deposit of the amount of duty and penalty levied. 3. At the time of hearing of the said show cause notice and its reply it was contended by Shri J.S. Agarwal, learned counsel for the appellants that the appellants have a strong prima facie case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Assistant Collector of Central Excise v. Dunlop India Ltd., 1985 (19) E.L.T. 22 (SC) (2) U.P. Lamination v. Union of India, 1985 (20) E.L.T. 243 (All.) (3) Union Carbide India Ltd.v. Union of India, 1986 (24) E.L.T. 169 (SC) (4) Bhor Industries Ltd. v. Collector of Central Excise, 1989 (40) E.L.T. 280 (SC) (5) Tube Products of India, v. Union of India, 1989 (41) E.L.T. 400 (Mad.) (6) Lonand Gram Panchayat. v. Ramgri, AIR 1968 SC 222 5. In reply Smt. Vi]ay Zutshi, learned JCDR vehemently contended that since admittedly the appellants have not complied with the said stay order dated 25-5-1984 till date the appeal should be dismissed for non-compliance under Section 35F of the Central Excises and Salt Act, 1944 irrespective of the fact that the identical issue is pending before the Tribunal in two appeals filed by the department as referred to by the learned counsel for the appellants as aforesaid. 6. We have considered the submissions. At the outset it may be stated that at the time of hearing, to a query from the Bench about the effect of the Apex Court order dated 30-11-1984, whereby the appeal of the appellants Filed against the stay order dated 25-5-1984 was dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its plain language, S. 35F of the Act confers on the Tribunal discretion to dispense with the deposit of duty demanded or penalty levied if it were satisfied that the making of such deposit would cause undue hardship to the appellants. In such an event, the Tribunal may dispense with the making of such conditions as it may deem fit to impose so as to safeguard the interests of revenue. The impugned order passed by the Tribunal under S. 35F is essentially of an interlocutory nature and this Court in an appeal under S. 35L cannot interfere with such an order. It was for the Tribunal to lay down the conditions on which waiver of pre-deposit and stay of realization should be granted and any failure to comply with the conditions must entail dismissal of the appeal . (Emphasis supplied) 8. In the aforesaid circumstances, in our considered opinion it will operate as res judicata in its subsequent application before the Tribunal. To the rule that the general principle of res judicata (though not the expressed terms of Section 11, Civil P.C.) applies to quasi-judicial decisions of the competent authority under the Act, there cannot be and should not be any dispute. The decisions rend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidered as an excisable goods. Thereafter the Central Excise Department went in appeal against the aforesaid order, of learned Collector of Central Excise, which is pending before this learned Tribunal and no stay on the operation of the orders of learned Collector has been given in the said appeal filed by the Department." 9A. It is amusing to note that after referring as aforesaid in the aforesaid application the appellants requested that they are willing to deposit some percentage of the duty demanded and penalty subject to the discretion of the Bench. The said application was heard at length and by Order No.S-3/86-D dated 2-1-1986 it was rejected. It is intriguing to note that while moving the subsequent application the appellants while stating the history of the case did not refer to the said application dated 19-11-1985 and the said Order dated 2-1-1986 passed thereon by the Bench. At the time of hearing also neither party drew our attention to the said application and the Order which is very much available on the record. Under these circumstances to say that the aforesaid contention is a new one is not factually correct. It may be stated that the observation made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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