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TMI Blog1992 (6) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... the above Misc. application by which they have prayed for restoration of the stay application. The Misc. application is also supported by an affidavit filed by the Authorised Signatory of the appellants. In this Misc. application, the appellants have stated that their matter was handled by Shri M.J. Nambiar, Consultant who was keeping indifferent health and had been seeking adjournments on personal grounds. The appellants had been bonafidely persuing the appeal and had acted diligently. They have stated that for the reason that the Consultant could not appear due to personal reasons, the appellants should not be punished as dismissal of stay application is a harsh step and causing undue hardship to them. In the facts and circumstances, the appellants have prayed that the stay application may be restored to file and the appellants may be permitted to address arguments thereon. 3. We have heard Shri A.S. Sunder Rajan, learned Consultant for the Appellants and Smt. Sundaram, learned DR for the Revenue. Shri Sunder Rajan submitted that the appellants have a very good case to seek stay and that they were only to be represented. When the application came up for hearing, as their Consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice itself. Undoubtedly, Court s orders have to be obeyed. The institution of judiciary may not be able to function if there is no sanction behind the Court s order. But penalty of failure to comply with Court s order providing a procedural stage in aid of justice must be commensurate with the gravity of the lapse. If the penalty imposed is disproportionate to the gravity of the lapse or omission, the procedural stage instead of becoming a step in aid of justice would be a road block to justice". 6. We have considered the submissions made by both the sides and perused the citation. The short question that arises for our consideration is as to whether the stay application can be restored by accepting the explanation given by the appellants in the above Misc. application filed by them in pursuance to the show cause notice issued to them by the registry. The main objection raised by the SDR is that there is no question for restoration of stay application as once stay application is dismissed for non-pursuance, then it cannot be restored and that the party has to only show proof of compliance of deposit of the amount. This contention of the learned DR is not supported by any auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of justice. 7. In a similar situation, the appellants were aggrieved for the dismissal of their stay application by the Tribunal, had written to the Calcutta High Court, the Hon ble Calcutta High Court by their Chief Justice pronounced the following order in para 7 to 10 in the case of J.N. Chemical (Pvt.) Ltd. v. CEGAT [1991 (53) E.L.T. 543 (Cal.)], which is as under :- 7. Against the aforesaid background, in our opinion it was impossible for the Tribunal to arrive at the conclusion that it could not be said that the appellant had a good prima facie case so as to justify the dispensation of the requirement of pre-deposit of the disputed amount of duty and penalty in question. On the facts and in the circumstances of the case, there was full justification for the exercise of the power vested in the Tribunal to dispense with the requirement of pre-deposit inasmuch as the case of the appellant was fully covered by the decision of a Special Bench of the Tribunal and still to insist upon the deposit of duty demanded and penalty levied would indubitably cause undue hardship to the appellant. The power to dispense with such requirement is conferred on the Tribunal to be exercised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the foregoing reasons the appeal succeeds and it is allowed. The decision under appeal of the Trial Court is quashed and set aside. The writ petition succeeds and the decision of the Tribunal impugned in the writ petition is quashed and set aside. The Tribunal is directed to entertain and decide the appeal in accordance with law by dispensing with the requirement of pre-deposit of the amount of excise duty and penalty in dispute." 8. On another occasion, the Hon ble Madras High Court in the case of Tamilnadu Newsprinters and Papers Ltd. v. Collector of Customs and Central Excise [1991 (54) E.L.T. 206], has not approved the recall of the stay order for making a request for adjournment. The Court has observed in the following words - In other words, what the Tribunal has now done is that merely because an adjournment was sought for, it has purported to modify the earlier order dated 20-2-1986 and has directed the petitioner to pay the balance of Rs. 7.6 lakhs as a condition for the grant of an adjournment. Learned Counsel for the petitioner Mr. C. Natarajan rightly argues that Section 35F of the Act does not invest the Tribunal with such a power. Mr. Srinivasamurthy, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch conditions as he or it may deem fit to impose so as to safeguard the interests of revenue . It is no doubt true that the second respondent had passed an order on 18-7-1990 taking the hardship of the petitioner before directing the deposit of Rs. 2,50,000/- but it cannot be disputed that the petitioner had Filed an application on 31-10-1990 for modification after paying a sum of Rs. 1,00,000/-. Whether the petitioner had paid this amount by depositing the jewels of the wife of the Director of the petitioner company or not is immaterial. The fact remains that the petitioner had made a genuine attempt to pay the amount and because the petitioner could not pay the amount of Rs. 2,50,000/- the petitioner came forward with an application for modification on 31-10-1990. The second respondent (Tribunal) ought to have looked into the whole aspect of the matter with reference to the modification application instead of dismissing the application for restoration merely on the ground that the petitioner had not given proof regarding the pledging of the jewels of the wife of the Director of the petitioner firm. I have already stated that it is an irrelevant consideration. What one has to se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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