9911796707
TMI Blog2004 (10) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 at 6.00 p.m. and carried out search in presence of the panchas noticing that certain processed fabrics were found in excess of the recorded stock and accordingly they were seized by the authorities. Search of the premises of the petitioner yielded such kacha delivery challans and four pocket diaries, which were seized from behind Mr. Bagdawala working with petitioner No. 1 company as the Asst. Dyeing Master, who admitted recovery of note books recovered under the panchnama and made a statement that the clearance of the processed fabric was without payment of duty. 2.After completing the investigation show cause notice was issued under Rule 233-A of the Central Excise Rules, 1944 on 14-10-1998 (Annexure-B) by the Commissioner, Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 417 of 2001 before the CEGAT for modification of the order of pre-deposit of Rs. 25 lakhs passed by the CEGAT dated 9-5-2001 (Annexure-D) on the ground of its poor financial condition. It appears from the impugned order dated 24-7-2001 passed by the CEGAT on the said modification application that though the petitioners were required to deposit Rs. 25 lakhs by 31-5-2001 as per its previous order dated 9-5-2001. (Annexure-D), but on the last date of the month i.e. on 30-5-2001 modification application was filed by them on the ground of continued losses and very poor liquidity condition, which was already considered by it on earlier occasion, therefore, it was not inclined to entertain that application. However, on the statement made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks. The CEGAT has also observed in its impugned order that the amount ordered to be deposited by the Tribunal was hardly 3% of the duty and penalty demanded and that the company had at least four months time (from the date of the order till disposal of the stay application) to take steps to furnish bank guarantee, but the same was not furnished. 5.On earlier occasion the petitioner approached this Court by way of Special Civil Application No. 12681 of 2001 wherein at the first instance notice was ordered to be issued by the Division Bench of this Court on 3-3-2003 making it returnable on 17-3-2003 for verifying the bona fides of the petition company in furnishing the bank guarantee. But having failed to furnish the bank guarantee within s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure-H ) and thereafter, moved the CEGAT by way of Restoration application No. 899 of 2003 in Appeal No. 4330 of 1999 for restoration of their appeal, which was dismissed by the Tribunal by its impugned order dated 17-8-2001 (Annexure-F) on account of not furnishing the bank guarantee as ordered earlier, but it was wrongly rejected by an impugned order dated 1-9-2004 (Annexure-A). Ms. Kapadia, learned Counsel for the petitioners submitted that the CEGAT ought to have granted their restoration application and restored their appeal on file on their furnishing bank guarantee. She submitted that due to their poor and weak financial condition initially they were not able to furnish the bank guarantee and as soon as they had sufficient funds then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of non-compliance of pre-deposit order. Writ petition filed against the said order before this Court was dismissed by the Division Bench of this court way back of 17-3-2003 for non-furnishing bank guarantee. Therefore, the impugned order at "Annexure-F" passed by the CEGAT merged into the order of this Court passed on 17-3-2003 in earlier writ petition i.e. Special Civil Application No. 12681 of 2002. Once the impugned order at "Annexure-F" passed by the CEGAT has merged into the order passed by this court in writ petition, then it was not open to …. petitioner No. 1 company to furnish bank guarantee dated 3-4-2004 on its own and then apply before the CEGAT by way of the restoration application for restoration of their appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned order dated 1-9-2004 (Aneexure-A). We also do not find any force in the submission of Ms. Kapadia that because of the filing of earlier writ petition before this court against its impugned order a Annexure-F, the CEGAT was prejudiced and therefore, it had dismissed the restoration application. In the impugned order at Annexure-A the CEGAT has only taken note of the fact of the dismissal of their previous writ petition by the High Court on the ground of non-furnishing of the bank guarantee. In our considered opinion the CEGAT was right in considering inordinate delay of 3 years on the part of the petitioners in furnishing the bank guarantee. 8.It may be stated that though the petition is labelled as petition under Article 226 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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