ORDER
B.J. Shethna, J.
1. Heard Shri Paresh Dave for the petitioner and the learned Standing Counsel Shri J.M. Malkan appeared, on the advance copy of petition being served upon him, for the respondents.
2. This is a second round of litigation at the instance of the petitioners. Prior to this petition, the petitioners have approached this Court by way of Special Civil Application No. 5523 of 2004, which was disposed of by the Division Bench of this Court, consisting of M.S. Shah & A.M. Kapadia, JJ. on 3-5-2004 with certain observations and directions. The copy of the order is annexed to this petition at Annexure-D.
3. From the earlier order passed by the Division Bench of this Court it appears that the Customs, Excise and Service Tax Appellate Tribunal (for short “Appellate Tribunal”), Mumbai, passed the order dated 14-1-2004 on the Stay Applications No. 2126 to 2128 of 2003 in Appeals Nos. 3086 to 3088 of 2003, filed by the petitioners, ordering the petitioner company to deposit Rs. 3 Crores out of the total duty demanded and upon such deposit, further deposit of duty and penalty imposed on the company was waived and recovery thereof was stayed. The Director of the petitioner company and the Power of Attorney holder of the petitioner Company were also required to deposit Rs. 20 lacs and Rs. 10 lacs respectively by 26-4-2004 and it was further observed that for non-compliance of the aforesaid direction the Appeal would be liable to be dismissed.
4. It also appears from the earlier order, passed by the Division Bench of this Court that two fold submissions were made by their learned Counsel Shri Dave for the petitioner, who is appearing in this petition also for the petitioners. It was contended by Shri Dave before the earlier Division Bench of this Court that (i) the Tribunal had imposed condition of pre-deposit of Rs. 3 Crores on the basis that their liability of duty was Rs. 16 Crores and odd, whereas, in fact it was hardly Rs. 8.69 Crores, and (ii) that the financial position of the petitioners was not such that they could deposit the amount. On these two grounds it was submitted before this Court on the earlier occasion that they were not interested in getting any interim stay of execution of order under challenge in Appeal before the Tribunal. All that they wanted was that their appeal be heard on merit. In light of this submission the Division Bench of this Court observed that since the petitioners do not want any interim stay as such, therefore, it is open to them to approach the Appellate Tribunal with miscellaneous Application, making the aforesaid request before the Appellate Tribunal and also for hearing of their appeals on merit in regular course. Accordingly, the petition was finally disposed of.
5. Once the earlier petition was finally disposed of on 3-5-2004 then, in our considered opinion, the 2nd petition on the same subject would not be maintainable. Therefore, without going into any other question this petition was straightway required to be dismissed on this ground.
6. Even assuming for the sake of arguments that the 2nd petition would be maintainable in view of certain observations and directions made on the previous Bench in its order dated 3-5-2004 in earlier petition i.e., in Special Civil Application No. 5523 of 2004 then also there is no substance in this petition and it was required to be dismissed for following reasons :
From the impugned order dated 20-5-2004 (Annexure : E passed by the Appellate Tribunal it clearly appears that earlier order of pre-deposit of Rs. 3 Crores was passed by the Appellate Tribunal on 14-1-2004 on said petition filed by the petitioners by directing the Directors Shri R.C. Agarwal to deposit Rs. 20 lacs and Shri H.R. Agarwal, Power of Attorney of the Company to deposit Rs. 10 lacs and the matter was posted for compliance on 26-4-2004 before the Tribunal. However, 26-4-2004 was declared holiday due to general Election in Mumbai, therefore, the matter was posted on 12-5-2004 and thereafter the same was adjourned to 20-5-2004, the day on which it was disposed of by final order (Annexure : E). It also appears from the order of the Appellate Tribunal that M/s. Bhavya Apparels moved this Court by way of Special Civil Application No. 5523 of 2004. The extract of the order was also reproduced by the Tribunal in its impugned order at Annexure : E. However, the Appellate Tribunal recorded in its order categorically that in spite of the aforesaid order dated 3-5-2004 passed by the Division Bench of this Court in Special Civil Application No. 5523 of 2004 no miscellaneous Application was filed making any request before the Tribunal. By observing this the learned Appellate Tribunal dismissed the appeal on the ground that it cannot hear the Appeal and decide the same in accordance with law in view of specific provision of Section 35F of the Central Excise Act, 1944. Therefore, in absence of compliance of Stay order the Appeals were dismissed. Once the Appeals are dismissed for non-compliance of the stay order by the Tribunal under Section 35F of the Act then such order cannot be interfered by this Court in its writ jurisdiction. It is also clear from the impugned order at Annexure : E, passed by the Tribunal that the day on which it had dismissed the Appeals for non-compliance of the Stay order. Admittedly no Application was filed by the petitioners as ordered by the previous Bench of this Court on 3-5-2004 in Special Civil Application No. 5523 of 2004. Be that as it may.
7. It clearly appears that after the Tribunal dismissed the Appeal the petitioners have filed Misc. Civil Application No. E/ROA/974-976 of 2004 before the Appellate Tribunal as per the order passed by this court on 3-5-2004 in earlier Special Civil Application No. 5523 of 2004, which was rightly rejected by the learned Appellate Tribunal by its impugned order dated 14-6-2004 (Annexure : G) as no new ground was made out in it by the petitioners warranting any modification. We are really surprised that though the learned Appellate Tribunal put specific question to the Counsel for the petitioners that whether the stay order was complied with by them or not, if further time was to be granted, to which the learned consultant stated that he has no instruction. Meaning thereby they were not in a position to pay. Under the circumstances, when the Appellate Tribunal dismissed their Miscellaneous Application then no fault can be found with the order. Therefore, in our considered opinion, the learned Appellate Tribunal was right in observing that restoring the Appeal and granting time for pre-deposit would be meaningless and it would not serve its purpose.
8. Before parting, it may be stated that the learned Counsel Shri Dave, appearing for the petitioner candidly stated at the bar that their financial condition is such that they will not be in a position to deposit the pre-deposit amount as ordered by the learned Tribunal way back in January, 2004 even if some more time is granted.
9. In view of the above discussion this petition fails and is hereby dismissed. No order as to costs.