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TMI Blog2000 (4) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... ein below :- 2.E/Misc/188/99 in E/SB/5341/93 - The Master Recording Company : In the case of The Master Recording Co., the applicants had filed restoration application No. E/ROA/551/98, which was not accepted and the application was dismissed vide Miscellaneous order No. 598/99, dated 28-6-99 as reported in 2000 (117) E.L.T. 216. It is noted in the said Miscellaneous order that the application was filed on second time seeking restoration of the appeal which had been dismissed for non-deposit of the amounts as directed by the Tribunal vide stay order No 234/93, dated 29-7-93. By the stay order, the appellants were directed to pre-deposit a sum of Rs. 1.25 lacs as against the total amount confirmed to the extent of Rs. 5,15,258.70. Initially, they had pro-deposited only Rs. 25,000/- and as there was no compliance, the appeal was dismissed on 31-3-94. The first restoration application No. 852/97 was also dismissed by Miscellaneous order No. 525/97, dated 15-10-97. In the said order, it had been made clear by the Tribunal that unless or until compliance is made by making full pre-deposit of the sum of Rs. 1.25 lacs, the appeal cannot be restored. The appellants had taken their own ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication is not allowed, then they will put to severe hardships. They further pointed out that on 28-1-2000 they have already deposited the balance amount of Rs. 4,40,259/-, which includes Rs. 50,000/-, representing penalty. They now stated that as they have pre-deposited the full amounts and TR 6 challans are produced in proof thereof and as there has been status quo in the matter and the Revenue has not recovered any amounts due, therefore, the right of appeal should be restored to them. They stated that despite the order passed vide Miscellaneous Order No. 598/99, dated 28-6-99, applying the ratio of the judgment of GTC Industries v. CCE as reported in 1997 (90) E.L.T. 460 and that of the Hon'ble Apex Court judgment in the case of Nirlon Synthetic Fibres Chemicals Ltd. v. UOI as reported in 1998 (99) E.L.T. 22 (S.C.), the application is required to be restored as the judgment in both the cases are distinguishable. They stated that in the case of GTC Industries (supra), the Tribunal did not restore the appeal as the party had not pre-deposited the amounts, while in the case of Nirlon Synthetic Fibres Chemicals Ltd. v. UOI (supra), they pointed out that case pertaining to non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mugam : By Stay order No. C/327 to 329/98, dated 6-5-98, the appellant and two others' stay applications were disposed of by a common order, as the appeals arose from a common impugned order. The appellant was directed to pre-deposit a sum of Rs. 10,000/- within a period of three months and as the said amount was not deposited by the appellant, while there were compliance of other two appellants, therefore, the appeal of the present appellant alone was dismissed for non-compliance, after granting one extension of time vide Miscellaneous Order No. 610/99, dated 9-10-99 and the appeal was dismissed vide Final Order No. 2472/98, dated 13-11-98. 6.By this application, the applicant submitted that he has faced with severe financial constraints and hence was unable to raise funds and could not comply with the order of the Tribunal, despite grant of extension of time. He submits that now the applicant is willing to deposit the amounts and he should be given Challans for depositing the amounts. Learned counsel mentioned that when the party approached the authorities, they have not permitted him to deposit the amounts, therefore, he seeks permission to deposit the amounts and seeks restor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-depositing the amounts is required to be condoned and as the amounts had been fully deposited, the right of appeal should be restored to the appellants in the interest of justice. The arguments addressed by the learned counsel appearing for Master Recording company was adopted by the learned consultant in this matter. 10.Learned D.R. opposes the prayer for restoration of appeal, as there was inordinate delay of six years from the date of the stay order in depositing the amounts. E/ROA/266/99 in E/360/96 - M/s. Evertaut Steels Pvt.11. Ltd. : In this case, the appellants vide Stay Order No. 121/96, dated 6-5-1996 had been directed to pre-deposit a sum of Rs. 60,000/- on or before 27-6-1996 as against duty confirmed to the extent of Rs. 1,59,539/- and penalty of Rs. 20,000/- in Order-in-Original No. 3/96, dated 9-1-1996 passed by the commissioner of Central Excise, Chennai. The appeal came to be dismissed vide final order No. 938/96, dated 28-6-96 for non-deposit of the amounts. The appellant appeared in person and submits that they could not pre-deposit the amounts due to sickness of the company and the financial problem faced by them and due to their bankers stopping the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by Shri Feroz B. Hajiani, while the appellant company M/s. Macnair Exports Ltd. had not deposited the amounts as directed in the stay order. They submitted that they are faced with severe financial hardships and they have stopped their activities for the last two years and there was a communication gap between them and the counsel and hence they could not file further application seeking extension of time. Therefore, they seek for waiver of the said amounts directed to pre-deposit and the appeal be restored to its original number. 14.Learned Advocate Shri Murugappan presses for restoration of the appeals of S/Shri Feroz B. Hajiani and H.R. Bhatt, as the pre-deposit of Rs. 50,000/- each has been made much earlier before the order of dismissal and the dismissal was as a result of the appellants not bringing them to the notice of the Tribunal about the pre-deposits made. As regards the non-deposit of the company, he submits that the financial statement of the company discloses severe losses and therefore, the Tribunal is required to be recalled its order of dismissal and grant them waiver due to financial difficulties pleaded by the appellants. He submits that the Tribunal can re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and facts of the case as above. It is necessary before coming to a finding on their pleas to examine the powers of the Tribunal under provisions of Section 35F of the Act. Section 35F of the Act is re-produced below :- "Deposit, pending appeal, of duty demanded or penalty levied - Wherein 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 subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." The above provisions of law has been subject matter of discussion in various Judgments pron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not the law that adjudication by itself following the rules of natural justice would be violative of any right - Constitutional or statutory - without any right of appeal, as such. If the Statute give a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant...." In view of the above ratio laid down by the Hon'ble Apex Court, it is clear that right of appeal under the Central Excise Act and Customs Act, is neither absolute nor ingredient of natural Justice but a statutory right and circumscribable by the conditions in the grant and that no right to prefer appeal is available unless pre-deposit is made in terms of the provisions quoted and further the discretion is granted to the Tribunal to grant waiver subject to the conditions laid down by it, after examining the prima facie case of the party and also taking into consideration the financial hardships that would be caused to the appellants, if they are cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty amount was not deposited in time to be a final order. It also held that therefore, it is not possible to accept the view that restoring of such an appeal which would amount to reviewing the earlier order of dismissal. The whole fallacy lies in the approach that if such an appeal was to be restored, it would amount to reviewing its earlier final order. The High Court disagreed with the observations of the Tribunal to the effect that it cannot restore the appeals and in that context, stated that the High Court is unable to agree with the said view because such orders passed in cases where the amount of penalty has not been paid are not final orders. It observed such a construction would lead to injustice and would not further the ends of justice. It observed what would happen in a given case where an appeal was dismissed for non-production of proof of deposit of penalty and it turned out in an application for restoration of such an appeal that the amount had already been deposited within the time granted but for some reason the same could not be reported or brought to the notice of the Tribunal before the appeal came to be dismissed on the ground of non-production of proof o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal was therefore, not justified in rejecting the application for restoration of the appeal on deposit of the entire amount of duty and for depriving the petitioner of his valuable right conferred by law. Likewise, the same High Court in the case of S.S. Pharmaceuticals (P) Ltd. v. CEGAT as reported in 1995 (79) E.L.T. 362 allowed the Writ Petition and permitted the appellants to pre-deposit the amount and get their appeal heard in terms of Section 35F of the Act, as the appeal was still pending. 24.We have now come across the another order of the Tribunal in the case of Shafiq Ahmed v. CC as reported in 1998 (103) E.L.T. 129, wherein the Bench held that once the appeal has been dismissed, the stay order automatically worked itself out and hence the appellants could have moved for restoration of their appeals only if they had been able to produce evidence that they had deposited the entire amount imposed upon them by the adjudicating authority. It is noted that since the entire amount had not been deposited, there is no justification for restoration and dismissed the same. 25.We notice that this judgment is not in keeping with the spirit of the Hon'ble Apex Court judgment ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e restored to their original numbers. 27.As regards M/s. Macnair Exports P. Ltd. case, we notice that they have not deposited the amounts and in view of the judgments already noted, their appeal cannot be restored, unless the pre-deposits are made, therefore, their restoration application is rejected. 28.In respect of Shri Feroz B. Hajiani and Shri H.R. Bhatt matters, we notice that the deposits had been made within the period of stipulated time and as they had not brought the same to the notice of the Tribunal, therefore, we allow their restoration applications and restore their appeals to their original numbers. 29.As regards M/s. Star Carbides, it is noticed that they have pre-deposited the amounts in terms of the stay order. We notice that there is inordinate delay in pre-deposit of the amounts. However, the Tribunal had indicated in the order of dismissal of appeal that the party can seek restoration on pre-deposit being made and shall seek condonation of delay. The appellants have explained the financial hardships faced by them and as they have pre-deposited the amounts in compliance of the stay order therefore, in light of the judgments noted above, the pre-deposits a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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