Customs, Excise and Gold Tribunal - Delhi
Shreewood Products Pvt. Ltd. vs Commissioner Of C. Ex. on 18 June, 2003
Equivalent citations: 2003(160)ELT920(TRI-DEL)
ORDER V.K. Agrawal, Member (T)
1. This is an application by M/s. Shreewood Products Pvt. Ltd. for restoration of their appeal which has been dismissed by the Tribunal vide Final Order No. A/538/99-NB(DB), dated 28-6-1999 for non-compliance with the provisions of Section 35F of the Central Excise Act.
2. Shri Rakesh Malhotra, learned Advocate, submitted that the present application for restoration of appeal and modification of pre-deposit has been filed in view of change of circumstances; that the department has attached their properties worth Rs. 4,64,30,000/- which is much higher to the pre-deposit amount; that as now the department has attached their property, the requirement of pre-deposit has been complied with and as such their appeal deserves to be restored; that the said property be kept as security against the pre-deposit and in case they lose the appeal they shall be liable to pay interest; that the similar offer was accepted in the case of Air Control and Chemical Engineering Co. Ltd. v. CCE - 1993 (66) E.L.T. 663 (T).
3. Opposing the prayer, Ms. Charul Barnwal, learned Senior Departmental Representative, submitted that once the appeal has been dismissed by the Appellate Tribunal, the department has to initiate steps to realise the dues from the appellants; that such steps taken by Revenue cannot be treated as compliance with the Stay Order passed by the Tribunal. She further mentioned that even the Supreme Court has dismissed their SLP against the dismissal of their appeal due to non-compliance of pre-deposit condition. She finally submitted that even the Tribunal has dismissed their application for restoration of appeal vide Misc. Order No. M/298/2002-NB, dated 5-9-2002.
4. We have considered the submissions of both the sides. Section 35F of the Central Excise Act provides that where in any appeal, the decision appealed against relate to any duty demanded or any penalty levied, the person desirous of appeal against such decision shall, pending the appeal, deposit the duty demanded or the penalty levied. However, Proviso to Section 35F empowers the Tribunal to dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of Revenue. The Tribunal vide Stay Order No. S/348/98-NB, dated 21-5-98 directed the Applicants to deposit a sum of Rs. 22 lakhs only towards duty out of Rs. 88,72,686/- duty confirmed against them and Rs. 2.5 lakhs towards penalty out of total penalty of Rs. 10 lakhs imposed on them on or before 12-8-98. They were to report compliance on 20-8-98. Subsequently, Tribunal directed on 10-2-99 to issue a show cause notice to the applicant as to why their appeal be not dismissed for non-complying with the Tribunal's Order dated 21-5-98. The Tribunal finally vide Final Order No. A/538/99-NB, dated 28-6-99 dismissed the Appeal for non-compliance with the provisions of Section 35F of the Act. The Applicants have themselves mentioned in their present application that the SLP filed against the dismissal of main appeal has been dismissed by the Supreme Court "due to non-compliance of pre-deposit condition." The dismissal of appeal has thus attained finality. Once the appeal filed by the applicants has been dismissed, the Revenue is at liberty to realise the amount of duty confirmed against and penalty imposed on them. The Revenue with a view to realise its due has taken the action of attaching their goods. Such attachment has nothing to do with the Stay Order passed by the Tribunal as the appeal itself stands dismissed by the Tribunal. The decision relied upon by them is not relevant as the facts are different inasmuch as the Tribunal was hearing the Stay Application in the said matter whereas in the present case, the appeal itself has been dismissed. Accordingly, there is no merit in the application which is rejected.