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TMI Blog2010 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... place either during the pendency of proceedings before the High Court or after dismissal - present applicant entitled to the benefit of Scan Computer Consultancy (supra) and Kamaladevi (supra), a benefit which liable to be granted under Rule 41 ibid, if not under Section 35C of the Central Excise Act – Appeal restored - E/468/1998 - M/923/2010-WZB/C-II/EB - Dated:- 2-8-2010 - S/Shri P.G. Chacko, S.K. Gaule, JJ. REPRESENTED BY : S/Shri S.S. Sekhon with R.V. Shetty, Advocates, for the Appellant. Shri N.A. Sayyad, JDR, for the Respondent. [Order per : P.G. Chacko, Member (J)]. In this application filed by the appellant in appeal No. E/468/98, the prayer is to restore his appeal which was dismissed by this Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties filed a joint writ petition before the Hon ble High Court, which came to be dismissed. Against the High Court s order, the parties filed a special leave petition before the Hon ble Supreme Court, which also came to be dismissed. Subsequently, the parties approached this Tribunal for restoration of their appeals, but the ROA applications filed by them also came to be dismissed vide order dated 10-6-2008 In the said order passed by this Bench, it was noted that an amount of Rs. 32,74,168/- had since been recovered from the applicants. The said amount, however, was not accepted as a pre-deposit. The said order dated10-6-2008was also taken in a writ petition by the parties to the Hon ble High Court, but that petition was subsequently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restore the appeal upon compliance being shown . Thus the application filed by the party was allowed by the Hon ble High Court albeit on terms. In the case of Kamaladevi v. CCE,Bangalore- 1998 (102) E.L.T. 514 (S.C.) cited by the learned counsel, the appellant (Kamaladevi) had filed an appeal with this Tribunal against an order of the Collector of Central Excise who had imposed a penalty of Rs. 50,000/- on her. Three other parties, who were also aggrieved by the Collector s order, had also filed similar appeals against the penalties imposed on them. This Tribunal required all of them to make pre-deposits under Section 35F of the Act. Kamaladevi was directed to pre-deposit the entire amount of penalty imposed on her. The pre-deposit was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court dismissing the writ petition filed by the applicant attained finality and also that the writ petition later on filed by the applicant against the Tribunal s order dated 10-6-2008 (whereby the ROA applications filed by the partnership firm and this applicant had been dismissed) was withdrawn by the petitioners and, in this scenario, the present application filed by Shri T.N. Mulani is liable to be dismissed as not maintainable. In this connection, the learned JDR has invited our attention to the observations made by the Hon ble High Court in its order dated27-8-2002passed in W.P. No. 1923 of 2002. 5. We have considered the submissions. We shall, at the outset, refer to the observations and findings contained in the Hon ble High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity had been granted. In such circumstances, Their Lordships found that the case was not fit for invocation of their extraordinary jurisdiction. In the present application, the applicant is not invoking any extraordinary jurisdiction. He is invoking an appellate jurisdiction conferred on this Tribunal by the statute. Under the statute, there is a rule, viz. Rule 41 of the CESTAT (Procedure) Rules, 1982, which authorises this Tribunal to pass, in appropriate cases, orders for the ends of justice or for preventing the abuse of the process of this Tribunal. 6. Upon considering the judgments cited by the learned counsel, we find that the present application is not to be treated as a review petition. The appeal of the applicant was dismissed f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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