ORDER
M.V. Ravindran, Member (J)
1. This miscellaneous application is for rectification of mistake/recall/modification of the stay order No. 293/05 dated 11.4-2005, of the Tribunal in the applicant’s case.
2. The reasons for filing this miscellaneous application the applicant herein had preferred a stay application and an appeal against order in appeal No. 653-CE/APPL/KNP/04 dated 31.12.2004, and the same was numbered as E/Stay/553/2005 NB(B) in Appeal No. E/714/2005-NB(B) by the Registry. The stay application E/S/553/2005-NB(B) came up for hearing before the Tribunal on 11.4.2005. After hearing the Advocate and the SDRs, the Tribunal vide its order No. 293/05-B dated 11.4.2005 directed the applicant to deposit an amount of Rs. 3.0 lakhs (Rupees three lakhs only) within 8 weeks, as a pre-deposit to hear the appeal. The compliance was to be reported on 28th June 2005. The applicant herein aggrieved by the order moved a miscellaneous application on 14th May 2005, for rectification of mistake/recall/modification in the stay order. The miscellaneous application was numbered as E/M/407/05. Pending the miscellaneous application, the matter got listed on 28th June 2005, for compliance. Since the applicant did not comply with the direction of the Tribunal’s order for pre-deposit, the Tribunal vide its order No. 485/05-Ex dated 28.6.2005, dismissed the appeal for non-compliance of the direction. The applicant herein preferred a writ petition, in the Hon’ble High Court of Judicature at Allahabad. The writ petition was numbered as WP1211/2005. The said writ petition was heard on 5.10.2005 and the Hon’ble High Court directed the Tribunal to dispose of the modification application expeditiously. Hence, this miscellaneous application for modification of stay order is listed today.
3. The learned Advocate for the applicant submits, that, the stay order dated 11.4.2005 was passed without considering the applicants plea of limitation and also regarding the settled law on the issue. He submits that the Tribunal has erred in not considering the decision of the Apex Court, and the written submissions made by the applicant before the appellate authority. Alternatively he submits, that since the application is also for modification for the stay order, he wishes to bring on record a subsequent development. He submits that, the Deputy Commissioner of Central Excise, Division-II, Allahabad, vide his detention memo dated 26.8.2005 detained finished goods & imported machinery worth Rs. 25,24,000/- on 14.9.2005 and this should suffice as pre-deposit as the total duty and penalty involved in this case Rs. 22.05 lakhs. He also submits that since the appeal has been dismissed for non-compliance this should be considered as deposit and appeal may be restored to its original number.
4. The learned DR on the other hand submits that the applicant has no reason to move a miscellaneous application and the order of the Tribunal dismissing the appeal is correct. He submits that the right course for the applicant would be to prefer an appeal or pursue the matter through legal remedies available to them. He submits that no modification may be allowed.
5. We considered the submissions made by both sides and perused the records. We find that the appeal No. E/714/05 was dismissed for non compliance of the direction of the Tribunal’s order dated 11.4.2005 for the deposit.
6. The Hon’ble High Court of Allahabad has passed an order in W.P. No. 1211/2005 which is as follows: –
Counter affidavit has been filed on the behalf of the respondents. Shri A.P. Mathur, learned Counsel for the petitioner states that he does not want to file rejoinder affidavit.
Heard Sh. A.P. Mathur, learned Counsel for the petitioner and Sh. Krishnaji Shukla, Additional Central Government Standing Counsel appearing on behalf of the respondents.
Learned Counsel for the petitioner submitted that a modification application has been filed on 06.06.2005 before the Tribunal for modification of the impugned order dated 12.04.2005 and the same is pending. Learned Counsel for the respondents also agrees that the said application is pending. Learned Counsel for the petitioner stated that the Tribunal may be directed to dispose of the modification application expeditiously on which learned Counsel for the respondents has no objection. In the circumstances, Tribunal is directed to dispose of the modification application expeditiously preferably within a period of three weeks from the date of production of the certified copy of this order.
7. The Hon’ble High Court has directed the Tribunal to consider the miscellaneous application of the applicants for modification of the stay order. We take up the same for disposal.
8. We find that the miscellaneous application as filed by the applicant is for the rectification of mistake/recall/modification of the stay order.
9. In respect of the rectification of mistake, we find that there is no error apparent on the face of the record/order. The Tribunal while disposing of the stay application in its order dated 11.4.2005 at paragraph 4 has held as follows :
4. We have considered the submissions of both the sides. In view of the judgment of the Supreme Court in the case of Elphinstone Metal Rolling Mills the applicants have not made out a prima facie case for waiver of pre-deposit of the entire amount of duty. We, therefore, direct the applicants to deposit a sum of Rs. 3 lakhs within 8 weeks from today and on complying with this direction there shall be waiver of pre-deposit of remaining amount of duty and entire amount of penalty and the recovery of the same will remain stayed during the pendency of the appeal. The matter will come up for reporting compliance on 28th June, 2005.
10. We find that, the Tribunal has considered all the submissions made by the applicant at the time of the hearing of the stay order. The applicant cannot now complain that the Tribunal has not considered any of the submissions made by him. This is very much evident from the first line of the para No. 4 reproduced above, Hence there is no mistake apparent on the face of the order which needs a rectification. Hence the applicants plea of rectification of mistake is dismissed.
11. Since the Hon’ble High Court has directed us to hear and dispose of the modification application of the applicant, we now proceed to take up the same for disposal. The applicants produced a copy of the detention memo. We verified the original with the copy of the detention memo dated 26.8.2005 and the details of the finished goods seized in the applicants factory on 14.9.05. We find from the detention memo and the annexure the revenue authorities have detained finished goods, inputs, machinery and parts of machinery, in lieu of the outstanding government dues against confirmed demand of Rs. 1102781/- and equivalent penalty in order in original No. MP/17/01 dated 21.7.2001. The Tribunal’s direction to pre deposit the amount of Rs. three lakhs was taken in order in appeal No. 653-CE/APPL/KNP/04 dated. 31.12.04. We find that this order in appeal was passed in an appeal against order-in-original No. MP/17 of 2001 dated 21.7.2001.
12. From the above facts it can be safely concluded that, the detention of finished goods, inputs, machinery worth Rs. 25,24,000/- by the Deputy Commissioner is in respect of this appeal No. E/714/05.
13. This Tribunal had vide its order dated. 11.4.2005 had directed the appellant to pre-deposit Rs. three lakhs only, out of the demand of duty of Rs. 11,02,781/-and equivalent amount of penalty. But since the value of goods detained by the Revenue vide its detention memo dated 14.9.2005, is more than the amount of the duty and penalty, we consider this as more than sufficient for compliance of the stay order and there is no reason for modification, except that the applicant/appellant will not release the detained goods during the pendency of the appeal.
14. The Advocate for the applicant/appellant undertakes not to apply for the release or the detained goods during the pendency of the appeal.
15. The appeal No. E/714/05 of the applicant was dismissed for non-compliance, and since we have come to conclusion, that due to change in circumstances as discussed above, there is sufficient compliance of the stay order.
16. In view of the situation as explained above, the oral application of the applicant to restore the appeal is allowed, and the appeal is restored to its original number. The Registry is directed to list the appeal in due course.
17. The miscellaneous application and oral application is disposed of as discussed above.
[Pronounced on 07/02/06]