ORDER
S. Duggal, Member (J)
1. This application moved by the Assistant Collector, Central Excise, Division-I, Ghaziabad, had been made with a prayer for vacating an order of stay passed by a Bench of this Tribunal on 15-1-1985, vide order No. 33/1985-A. Shri P.K. Ajwani, SDR has appeared in support of this application. On being asked as to under what provisions of the Act such an application could be moved, as in view of the Bench, this is tantamount to a prayer for review of the earlier order, passed by a Bench, Shri Ajwani, SDR replies that the order is erroneous inasmuch as it has been passed ignoring judgment of the Hon’ble Supreme Court, in the case of Assistant Collector of Central Excise of Chandan Nagar v. Dunlop India Limited and Ors. He further says that after the Bench has observed that there is no undue hardship to allow waiver of entire amount of duty, and as such the order dispensing with condition of pre-deposit of the penalty amount, and securing half of the duty amount by Bank Guarantee was not justified.
2. Shri M. Ganeshan, learned Advocate for the appellant/non-applicants in this case pointed out that apart from the fact that there was no provision in the Act for the Tribunal to review or recall earlier orders, and as such this application was not maintainable; otherwise also, this order was passed when the judgment in Dunlop India’s case had already come inasmuch as whereas the judgment of the Hon’ble Supreme Court was delivered on 30-11-1984, this order was passed on 15-1-1985. He stated that in case the respondent was aggrieved by such order, there was an appropriate remedy by way of reference etc.
3. We find in the first instance that this application has been moved by an Assistant Collector, whereas the respondent in the appeal is Collector of Central Excise, North UP Collectorate, Meerut. Shri Ajwani could not point out any provisions in the Act, whereunder any officer other than respondent Collector could, move such an application. We therefore, find it to be a case, where the application has not been made by a competent officer, and is thus not entertainable. Otherwise also, we find that what the application wants this Bench to do is to sit in appeal over an earlier order on merits. This is not warranted by provisions of law. The order of stay etc. could be modified or varied in the event of some subsequent developments on facts, and it is not open to the party to seek review on merits. In this case, as already pointed out, the judgment of Hon’ble Supreme Court had come before the order in this case was passed. It was for the Departmental representative at that time to have opposed the application on the basis of the said judgment.
4. We, therefore do not find any case made out for allowing this application. It is rejected accordingly.