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TMI Blog2004 (8) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ed them to pre-deposit Rs. 75,000/- on or before 30-9-1991 and to report compliance. The amount of Rs. 75,000/- was not deposited by the appellants and therefore, the Tribunal by it's Order No. 612/91, dated 30-9-1991 dismissed the appeal. The applicant could not pre-deposit the said amount as their factory remained closed from February, 1989 which has resulted in crippling the financial activity. In the mean time Canara Bank initiated proceedings to realize Rs. 7 lakhs. The dispute with Canara bank was settled in the year 2000. The applicants could restart the factory only in the month of June, 2002. As the factory remained closed for 13 years from 1989 to 2002, and they had no other source of income, it took time to arrange for finance after the opening of the factory. They pre-deposited amount of Rs. 75,000 on 3-1-2003. The application for restoration came up for hearing on 18-3-2004 and under Order No. 113/2004, dated 18-3-2004, the applicants were directed to deposit the entire adjudicated amount by 11-5-2004 for considering their application. They paid another amount of Rs. 75,000/- on 27-4-2004. By miscellaneous order No 264/2004, dated 11-5-2004 further times was given to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was heard on 22-9-1994 and they were directed to pre-deposit a sum of Rs. 13 lakhs. They paid Rs. 1 lakh and preferred petition for modification of order dated 22-9-1994. The Tribunal by it's order SV/M/118/95, dated 3-8-1995 modified the earlier order and directed the appellants to deposit Rs. 9 lakhs (including Rs. 1 lakh already paid as pre-deposit). They were given facility to deposit the amount of Rs. 8 lakhs in five monthly instalments of Rs. 1.5 lakh each and balance Rs. 50,000/- in the sixth instalment. However, they could not deposit the amount and the Tribunal dismissed their appeals for non-compliance of the pre-deposit under Order No. 16/96, dated 29-3-1996. The applicants pleaded that there was a lay-off in the factory which continued from January, 1996 to April, 1997 and during this period there was no person inside the factory and that is why they did not get any information regarding dismissal of the appeal. Recently they received a notice from Central Excise Department for payment of duty amounts, as their appeals were dismissed in 1996. They are now ready to pay the entire amount directed to be pre-deposited and requested for restoration of the appeal. They pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Income Tax Officer v. M.A. Mohammed Kunhi (AIR 1969 S.C. 430) and requested for dismissal of that applications. E/ROA/64-65/03 in Appeal Nos. E/408,409/98 Hamsons Steels & Alloys :- 8.The applicants M/s. Hamsons Steels and alloys Pvt. Ltd., in their application for restoration of the appeal have stated that they had filed Appeal Nos. E/408/98 and E/409/98 respectively on behalf of Hamsons Steels and Alloys Pvt. Ltd. and Shri Shafiqur Rehaman it's Managing Director. They were asked to pre-deposit a sum of Rs. 15 lakhs and Rs. 10,000/- respectively vide Stay Order No. S/376/77/98, dated 14-5-1998 within three months from the date of the Order. The Tribunal dismissed the appeal under it's order 1820-1821/99, dated 23-7-1999 for non-compliance of the stay order. The restoration application filed earlier by both the appellants was considered by the Tribunal under miscellaneous Order Nos. 46-48/2000, dated 3-2-2000 and rejected the application for restoration of the appeal of M/s. Hamsons Steel Alloys as they had not complied with the stay order whereas the application filed by Shri Shafiqur Rehaman, Managing Director was restored to it's Original No. E/409/99. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion before Chennai Bench of CEGAT against OIO No. 3/98, dated 20-2-1998 passed by Commissioner of Central Excise, Visak. Tribunal under it's Stay Order No. 691/99, dated 6-5-1999 directed them to pre-deposit Rs. 10 lakhs. However the appellants did not pre-deposit the amount, hence by Final Order No. 3158/99, dated 20-12-1999, the appeal was dismissed for non-compliance under Section 35F of the Central Excise Act. The Final Order No. 3158/99, dated 20-12-1999 was recalled under Miscellaneous Order No. 75/2000, dated 9-2-2000 and the applicants were given further time to pre-deposit the amounts and report compliance by 6-4-2000, the time was further extended several times on different occasions. Finally since the appellants failed to deposit the amount the appeal, was again dismissed vide Order Nos. 343-346/01, dated 12-10-2001. Restoration application was filed on 17-10-2002. Thereafter, the case has been adjourned on various occasions for non-compliance. 12.M/s. Shri Dhanalakshmi Cloth Dyeing and Printing Works filed appeal No. E/1325/98 against OIO No. 2/98 ASR, dated 19-2-1998 passed by the Commissioner Central Excise, Visak along with stay applications. Appeal No. E/1308/98 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taraman Printing and Dyeing Works in their application filed on 17-10-2002 for restoration of appeal have stated that they have deposited Rs. 13,000/- till 11-9-2002 and are filing application for restoration of appeal. They are small hand processors running labour oriented unit who could not mobilize to pre-deposit amount and pleaded that the appeal may be restored. 16.Shri K.S. Ravi Shankar learned Advocate appeared for all the four appellants namely M/s. Gauthami Textiles, Shri Dhanalakshmi Cloth Dyeing and Printing Works, M/s. Sai Fabrics and Shri Venkataraman Printing and Dyeing Works. He pleaded that since appeal of M/s. Dhanalakshmi Cloth Dyeing and Printing Works abates, he is not pressing for its restoration. He is only pleading for the other three applicants. Shri Ravishankar pleaded that M/s. Gauthami Textiles have complied with the stay order by depositing the full amount of Rs. 10 lakhs as on 28-6-2004. Shri Sai Fabrics, has deposited the amount of Rs. 1,50,000/- as on 10-3-2004 and Shri Venkataraman Printing and Dyeing Works has deposited the amount of 50,000/- as on 18-8-2003. All these appeals were dismissed on 12-10-2001 for non-compliance of the stay order. He pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore these appeals should not be restored as the appellants instead of paying the disputed amounts were taking the things very easy and had not even shown their alertness in filing the restoration application in time by complying with the terms of pre-deposit. Therefore all these miscellaneous applications should be dismissed. He relied on the decisions of the Tribunal in the following cases :- (1) Inventa Electronics Pvt. Ltd. v. CCE, Pune (I) [2002 140) E.L.T. 218] wherein it was held that appeal cannot be restored after 4 years of passing of stay order on the ground that applicants' financial position has improved especially when deposit not fully made and bona fides remain doubtful. (2) Sarvodaya Laboratories v. CCE, Mumbai [2002 (145) E.L.T. 647] wherein it was held that stay order not complied with by appellants. Deposits made by appellants six months after the time prescribed expired and no application filed for modification, plea of financial hardship already held to be unsubstantiated at the time of passing stay order. (3) Nandganj Sihori Sugar Company Ltd. v. CCE, Allahabad [2001 (132) E.L.T. 251] wherein it was held that order disposing the appeal received by appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l filed miscellaneous application C/ROA/7/04 in Appeal No. C/5/01 for restoration of the appeal. 19.Shri S. Raghu learned Advocate appearing for the applicants pleaded that they had filed appeal before the Tribunal against Order No. 34/2000 Commissioner/Customs/Adjn, dated 27/29-9-2000 under which the Commissioner demanded duty draw back of Rs. 91,746/- from M/s. Suha International and imposed a penalty of Rs. 2 lakhs on Shri P.K. Ahmed proprietor of M/s. Suha International. The stay application filed by the applicants was decided under Stay Order No. 2000-2001, dated 12-3-2001. They were directed to deposit the draw-back duty amounting to Rs. 91,746/- by 30th April, 2001. The period was further extended up to 1st June, 2001 but since the applicants did not deposit the amounts, the appeal was dismissed for non-compliance of Section 129E of the Customs Act under Final Order No. 1222/01, dated 26-6-2001. Miscellaneous application for restoration of the appeal was filed by appellants on 18-12-2003 wherein it was pleaded that the applicant was suffering from heart problem. Hence he could not keep in touch with the development of the case which was attended by his son-in-law Shri P.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal applications field by the respective applicants. 21.We find that the applicant M/s. Jose Tyrerub Industry has filed the restoration application on 10th March, 2003, giving the ground for restoration that by Order No. 612/91, dated 30-9-1991 their appeal was dismissed for not pre-depositing the amount of Rs. 75,000/- on or before 30-9-1991. The reason given by them for non-compliance is that their factory remained closed from February, 1989 onwards and Canara Bank initiated proceedings to realize Rs. 7 lakhs from them. We find that the same grounds was given by them before the Tribunal in 1991 when the order for pre-deposit was passed under Stay Order No. 382/91 and after considering this ground only, the Tribunal asked them to deposit the amount of Rs. 75,000/- out of the total amount of Rs. 4,05,452.47 as duty and Rs. 50,000/- as penalty. The appellants thereafter neither approached the Tribunal for extension of time nor complied with the pre-deposit. Accordingly the appeal was dismissed in terms of Section 35F of the Central Excise Act. We find that since 30-9-1991 till 10-3-2003 when the application for restoration of appeal was filed the applicants have not taken an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of Rs. 15 lakhs vide Stay Order Nos. S/376-377/98, dated 14-5-1998, within three months from the date of the order. Since they did not comply with this, extension of time was granted to them by miscellaneous Order No. 638/98, dated 21-10-1998 and Miscellaneous Order No. 35/99, dated 5-1-1999, but they did not comply with the stay order. The appeals were dismissed vide Final Order Nos. 1820-1821/99, dated 23-7-1999 under Section 35F of Central Excise Act. Thereafter both the appellants namely M/s. Hamsons Steels and Shri Shafikur Rehaman filed restoration applications which were decided by Miscellaneous Order Nos. 46-48/2000, dated 3-2-2000 by which the appeal of Shri Shafikur Rehaman was restored to it's Original No. E/409/99, as he had pre-deposited the amount. Thereafter the appeal of Shri Shafikur Rehaman was dismissed under Final Order No. 178/03 for non-prosecution. Both the appellants filed restoration applications which were decided by Miscellaneous Order Nos. 111-112/2004, dated 18th March, 2004 [2004 (167) E.L.T. 513 (Tribunal)] by which M/s. Hamsons Steels were directed to pre-deposit entire adjudicated amount within 6 week from the date of order and on such deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CCE, Chennai (supra). But instead of depositing the entire adjudicated amount they only deposited the amount of pre-deposit which was fixed for them in 1999. Thus we find that the appellant instead of seriously trying to deposit the amount and coming forward with proper reason for non-pursuing the restoration application after dismissal of the appeal cannot take a plea of substantial justice as the Tribunal has also to see the revenue interest. It was also made clear to them that these cases will be considered only when the entire adjudicated amount is deposited. However, since the adjudicated amounts were not deposited these applications are also rejected. They cannot take undue advantage of getting the appeal restored whenever convenient to them. If they would have been genuinely pursuing the matter they would have taken precaution for mobilizing the funds and depositing the amounts in time. By following ratio of the decision relied upon by the learned SDR in case of Inventa Electronics v. CCE, Pune, Sarvodaya Laboratory v. CCE, Mumbai, we reject these applications. M/s. Malu Sleepers : 25.We find that in case of Malu Sleepers, Shri Nand Kishore Malu and Shri Odeyar their ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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