Customs, Excise and Gold Tribunal - Mumbai
Dee Industries And Ashok D. Dasalia vs Commissioner Of Central Excise, ... on 16 May, 2001
Equivalent citations: 2001(136)ELT1101(TRI-MUMBAI)
ORDER
Gowri Shankar, Member (Technical)
1. These applications are for recall of the order of the Tribunal dated 22.2.2000 dismissing two appeals on the ground that compliance with the stay order passed on 16.12.99 requiring deposit of Rs. 7 lakhs within two months from the receipt of this order had not been complied with.
2. The contentions of the common representatives of the applicant are these. The Tribunal's stay order was not delivered to one of the two addresses given in the appeal for service in the notice. No doubt a copy of the order was received at the office of Mr. S.J. Vyas, Advocate of the applicant. However, a copy of the order was not sent to the applicant nor was its receipt communicated to them by their advocate or its office. The applicants only came to know of the Tribunal's order when they received the order in May 2000 dismissing the appeal for default. On account of their financial difficulty, each of them made the deposit in instalments, the deposit being completed in December 2000.
3. It is not possible for us to accept any of these contentions. The Tribunal's stay order was dictated on 16.12.99 in the presence of Mr. S.J. Vyas advocate who argued the matter. Mr. Vyas, who is before us today, says he communicated to each of the applicants the details of the accounts to be deposited and the date by which it was to be deposited, i.e., two months from the receipt of the order. It is not really possible on evidence produced before us to say that copies of the order posted to the applicant's address were not received by them. There are no affidavit to this effect. Even if we assume that they were not received, receipt by their counsel of the order, acknowledged by him, is in our view sufficient. In the memorandum of appeal against the column - showing the address to which notice can be sent, each of the applicants had given two addresses, their business address and that of Mr. Vyas, Advocate. Hence, according to us, if the order was served at any one of these addresses, service was complete. There would otherwise be no necessity to give two addresses. It would also not be possible to accept the contention that the two addresses were given only for receipt of notice as distinct from the order. It is beyond our understanding as to why if notice sent to the advocate was sufficient for the applicants to be aware of what to do, the order sent to him was not enough to enlighten them as to what to do. Even otherwise the stay order itself is clearly a notice or intimation to the applicant that if they did not deposit the amount required in the specified period, the appeal would be dismissed.
4. It must be noted that even if all these contentions are accepted, and there has still been a default. The order dismissing the appeal for default was received in May. Surely they communicated the advocate. The representative of the applicants accepts that amounts came to be paid by them because, on receipt of this order they contacted their advocate and obtained from him a copy of the stay order. Mr. Vyas says that to the best of his recollection the copy of the order was given to them sometime in June. Each of the applicants made the first payment of Rs. 50,000/-, less than 10% of the amount, on 22.8.2000. Half of the amount was paid around 12.12.2000, the complete payment having been made, as we have noted, by 27.12.2000. Therefore, even assuming reasonably, that the stay order was received by the applicant on 30.6.2000, they still made the payment six months thereafter. In this background, the contention that payment was delayed on account of non-receipt of the stay order has no force.
5. The other claim that payment was delayed on account of financial hardship again is difficult to accept. There was no specific claim of financial hardship in the stay application. A somewhat diffused claim that the financial position was not good and predeposit is likely to cost irrepairable financial loss, was made. While it was claimed that latest annual accounts of the applicants have been enclosed to the application, no such accounts were found enclosed. Financial hardship was not a ground urged in the hearing; the Tribunal has not recorded in its stay order that financial hardship was pleaded. The amount ordered to be deposited is Rs. 7 lakhs by Dee Inds. against the demand of duty or Rs. 21 lakhs and penalty of equivalent amount imposed on the firm and Rs. 1 lakh penalty on the partner. There was no application made for the modification of the stay order.
6. The decision of the Tribunal in FGK Thermal vs. CCE 2000 (38) RLT 982, containing the delay in depositing the amount does not seem to set forth any perceptible ratio for its conclusion and must therefore be confined to the facts of the case. While it is easy enough to invoke the interests of justice, we must keep in mind that justice has to be delivered to both parties, the departments and the appellant. Again, granting this application, would in effect mean that an applicant can choose to deposit whenever he likes them disregarding the direction that is given with regarding the time to deposit. In this case, the applicant has taken 10 months. Tomorrow, another applicant may take five years. We are unable to perceive the difference between ten months, five years or ten years. We think that it would be fair to say that the Tribunal should be liberal in condoning such delay if it can be concluded that despite bona fide efforts of the applicant, it was not possible to comply with the Tribunal's stay order. The amount of delay is one of the factor to be in determining the bona fides. We do not find, despite out best efforts evidence of such bona fide on the part of the applicants before us.
7. The applications are accordingly dismissed.