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TMI Blog2017 (9) TMI 1702X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of duty to the extent of Rs. 56,06,662/- and penalty of the same amount on M/s Sameer Ispat. A penalty of Rs. 10 lacs upon the Director and Rs. 1 lac on the Authorised Signatory was also imposed. M/s Sameer Ispat preferred an Appeal before the Appellate Tribunal along with an application for dispensation of the pre-deposit of the amount. Section 35F of the Act with the two provisos is reproduced below: "35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the appeals are dismissed for non-compliance to the provision of Section 35F of Central Excise Act." Earlier, during the pendency of the Appeal before the Appellate Tribunal, a modification application was also filed by M/s Sameer Ispat on 18 December 2005 before the High Court for modification of the order dated 8 December 2005. It was rejected by a Division Bench on 21 April 2006 as none had appeared to press the application. Thereafter, an application was filed for recall of the order dated 21 April 2006. This was also rejected on 12 November 2009 and the order is reproduced below: "This is an application recall the order dated 21st April, 2006. The writ petition was heard and decided after hearing Shri A.P. Mathur, learned counsel for the petitioners by the judgment dated 8th December, 2005. Thereafter an application for modification of the said judgment was filed by Shri Manoj Kumar Rajvanshi, Advocate, who was not a counsel earlier. However, the said application was dismissed in default on 21st April, 2006 as none was present even in the revised list. By means of this application, the order dated 21st April, 2006 has been sought to be recalled. Having heard lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication after such a long period of more than 6 years. Accordingly, both the applications are rejected." However, M/s Sameer Ispat had also filed Writ Tax No.289 of 2014 seeking direction to the Appellate Tribunal to dispose of the Appeal on merits contending that it had deposited an amount of Rs. 5 lacs allegedly in January 2012. This petition was dismissed by a Division Bench presided over by the then Chief Justice, Dr. D.Y. Chandrachud by order dated 5 May 2014. The order is reproduced below: "On 8 October, 2005, the CESTAT while disposing of a stay application filed by the petitioners, directed the petitioners to deposit an amount of Rs. 15 lacs. This Court by an order dated 8 December 2005 reduced the quantum of deposit to Rs. 5 lacs. The amount was to be deposited within a period of one month from the date of the order and the petitioners were to furnish an indemnity bond in receipt of the disputed amount. The Division Bench made it clear that if the petitioners fail to comply with the condition, the appeal would not be entertained by the Tribunal. The petitioners did not comply with the order of deposit but filed a modification application in the writ petition prayin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs. 5 lakhs and executes an indemnity bond for the entire disputed amount within one month from the date of such order. Disposal of the Writ Petition in above terms implies that the stay order dated 05.10.2005 of the Tribunal has merged with the order dated 08.12.2005 of the Hon'ble High Court. Doctrine of merger of order connotes that order passed by a lower authority would lose its finality and efficacy in favour of order passed by higher authority before whom such order is assailed. Even the said doctrine applies regardless, whether higher court affirms or modifies orders of lower authority. It is an admitted fact on record that the stay order of the Tribunal was modified by the Hon'ble High Court to the extent of depositing 5 lakhs, instead of 15 lakhs as directed, which the applicant did not comply, has resulted in dismissal of the Writ Petition. In view of the doctrine of merger, the stay order dated 05.10.2005 and the Final order dated 10.01.2006 passed by the Tribunal have lost their effectiveness, and thus, the Tribunal has no power to entertain restoration application at this stage. In context with doctrine of merger of order, the Hon'ble Allahaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting in the proceeding? Sri Rakesh Ranjan Agarwal, learned Senior Counsel for M/s Sameer Ispat assisted by Sri Suyash Agarwal has submitted that once M/s Sameer Ispat had deposited the entire amount, the application filed by it for recalling the order dated 10 January 2006 and for hearing the Appeal on merits was liable to be allowed by the Appellate Tribunal. In support of this contention, learned Senior Counsel has placed reliance upon the judgments of the Supreme Court in Kisaan Gramodyog Sansthan & Ors. Vs. Commissioner of Central Excise, Kanpur (2015) 10 SCC 629, Alpha Detergents Pvt. Ltd. Vs. Commissioner of Central Excise 2006 (204) E.L.T. 521 (S.C., M/s Inventa Electronics (P) Ltd. Vs. Commissioner of Central Excise & Customs, Pune (Special Leave Petition No.16935 of 2002, decided on 13 April 2004) as also the judgment of the Bombay High Court in Venus Electronics & Control Pvt. Ltd. Vs. Commissioner of Customs, Kandla 2006 (198) E.L.T. 547 (Mumbai). Learned counsel for the respondents has, however, contended that no substantial question of law arises for consideration in this Appeal. It is his submission that the Appellate Tribunal has for good and cogent reasons rejecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal by a detailed order on 27 March 2015. It is not possible to accept the submission of learned Senior Counsel for the appellant that the order dismissing the Appeal should be recalled and the Appeal should be heard on merits since M/s Sameer Ispat has now deposited the entire amount of duty. The order passed by the Division Bench on 5 May 2014 dismissing Writ-Tax No.289 of 2014 filed by M/s Sameer Ispat has attained finality. If the Appeal could not be heard after the deposit of amount of Rs. 5 lacs, there is no good reason as to why it should be heard after deposit of certain additional amount. Once, the Appeal had been dismissed, M/s Sameer Ispat had to deposit the amount of duty imposed and the penalty imposed. Learned Senior Counsel for the M/s Sameer Ispat has placed reliance upon the decision of the Supreme Court in Kisan Gramodyog Sansthan. The relevant observations are as follows : "3. The short facts leading to the present lis are: for non-payment of "pre-deposit" the Tribunal had dismissed the appeal of the appellants-herein, vide order dated 22.02.2012. It is an admitted fact that the said order has attained finality. ..................... 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. We are not inclined to interfere with that direction, which appears to be quite reasonable. 5. At this stage, learned counsel for the appellant submits that though the special leave petition was pending in this Court, the appellate authority dismissed the appeal (bearing A No.370 of 1999) in default on 24.3.1999 because the pre-deposit had not been made as directed. Mr. Harish N. Salve, learned Solicitor General appearing for the respondents fairly submits that in case the pre-deposit of Rs. 30 lakhs, as directed by the appellate authority and confirmed by the High Court, is made within six weeks from today, the respondents would not object to the appeal being restored by the appellate authority and decided on its own merits. We record the statement of the learned Solicitor General and direct that in the event the predeposit of Rs. 30 lakhs is made by the appellant within six weeks from today, the appeal, which stands dismissed in default, shall be restored by the appellate authority and disposed of on its own merits. In case the amount is not deposited within the time stipulated above, the order of the dismissal of appeal by the appellate authority would operative." ..... X X X X Extracts X X X X X X X X Extracts X X X X
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