Customs, Excise and Gold Tribunal - Mumbai
Inventa Electronics Pvt. Ltd. vs Commissioner Of Central Excise And ... on 12 September, 2001
Equivalent citations: 2002(140)ELT218(TRI-MUMBAI)
JUDGMENT
Gowri Shankar, Member (Technical)
1. The background to this application is as follows.
2. The applicant filed an appeal against the order of the Commissioner of Central Excise confirming a demand for duty of Rs. 67.16 lakhs approx, and imposition of penalty of Rs. 2.00 lakhs on it. The Tribunal heard and passed orders dated 22.3.1996, after considering various grounds that were raised, including financial hardship, on the ground that the applicant had incurred a loss of Rs. 22.00 lakhs for the year ending February, 1996. It ordered deposit by the applicant of Rs. 15.00 lakhs in cash, and also asked it to furnish a bank guarantee for Rs. 15.00 lakhs within three months. Deposit in instalments was also permitted.
3. The applicant filed an application for modification of this order, which the Tribunal heard and disposed on 13 December, 1996. The ground, in the modification application, was of financial hardship. The Tribunal was unconvinced by this claim. It noted that financial hardship had already been considered when the order on the stay application was passed and further noted that no attempt has been made to comply with the order which permitted deposit in instalments. No instalment has been deposited. Noting further that the show cause notice dismissal of the appeal under Section 35F has been issued earlier, it dismissed the application and also the appeal for non compliance with the provisions of Section 35F.
4. When the applicant's second modification application was herd, the counsel for the applicant who appeared for the applicant, contended that the it had deposited Rs. 2.50 lakhs in cash and executed a bank guarantee for Rs. 3.00 lakhs. The Tribunal noting that the stay order had only been complied with only a part, declined to entertain the application and dismissed it. This has resulted in the present application.
5. The ground in the application again is of financial hardship. It is also contended that as a result of the arrangement that the applicant has entered into its bank, it is liability has been reduced from rs. 74.00 lakhs to Rs. 45.00 lakhs from January 2000. It is further contended that in the case of D.B. Electronics, which was identically situated as the applicant, the Tribunal had accepted its contention and dismissed the department's appeal (reported in 2000 (128) ELT 1070).
6. We are unable to accept the ground of financial hardship. This ground has been argued at least thrice. We do not find it possible to hold that, because four years after the stay order passed the applicant's financial position has improved, the appeal must be restored. Doubtless the Gujarat High Court has held in Hussain Haji v. Union of India 1995 (77) ELT 803, that the Tribunal does have the power to consider restoration of the appeal, which it has dismissed for failure to comply with the condition of pre deposit. The High Court had noted "weights subsequent circumstances" in disposing of the application in coming to this conclusion. We do not find that the facts of this case justify taking this view. It is not unreasonable to say that sooner or later financial position of every one would change. Accepting this principle would mean that in every case where an appeal is dismissed for non compliance, the applicant is entitled to have the appeal restored when the makes the deposit four years (in this case), ten years or twenty years later. In point of fact, the deposit has not even been fully made. On being asked by us, the counsel for the applicant says that the settlement with the bank, as a result of which the applicant's liquidity has considerably improved (which is the bedrock of this application) took place in May 2001. We would then have expected that the applicant would have deposited some further amount of the balance amount as evidence of its bona fides. This has not been done. In these circumstances, we find ourselves entirely unable to accept to the suggestion that the counsel for the applicant makes that the applicant will pay the entire amount within four months from to day.
7. The dismissal of the appeal relating to D.B. Electronics does not appear to have any relevance to the facts before us. This point ought to have been raised and considered by the Tribunal in the stay application and the two subsequent applications it followed. It is not possible or permissible to entertain this issue now.
8. The application is dismissed.