ORDER
G.R. Sharma, Member (T)
1. These are 2 appeals. Since the facts and issues in the two appeals are similar, they were heard together and are being disposed of by this common order. Cross-objections have been filed by Revenue.
2. The facts of the case briefly stated are that the appellants have two induction furnaces. The ACP of these furnaces was determined provisionally first and subsequently finally. Final Order determining the capacity of induction furnace of these two units were passed on 20/21-3-1998. Against this order both appeals have been filed. The Tribunal by its Final Order No. A/190-91/99-NB, dated 18-3-1999 held that “We, therefore agree with the ld. DR that the explanation of the appellant does not inspire any confidence and, we therefore, are not satisfied that the delay is required to be condoned. Accordingly, we dismiss the COD applications and as a consequence, the stay applications and the appeals are also dismissed as time barred.” In the mean time, the appellants submitted an application on 1-5-2000 requesting the Commissioner for refixing the TCF in consonance of manufacturer’s invoice under Section 3A. The Commissioner after carefully considering the submissions observed that since the matter has already attained finality, no further action is left at this end.
3. Simultaneously, the appellants went to the Hon’ble Allahabad High Court. The Hon’ble Allahabad High Court by their order dated 28-11-2000 held that “This petition is disposed of with direction to the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) to decide the petitioner’s Appeal No. E/2406/2000-NB (DB) on merits preferably within three months from the date of production of a certified copy of this order in accordance with law. The stay application should be decided within a week from the date of filing of the certified copy of this order.” Similar order was passed in Appeal No. E/2374/2000-NB.
4. Arguing the case for the appellants, S/Shri Vinay Garg and Amit Awasthi, ld. Advocates submit that their case should be heard in terms of the order of Hon’ble Allahabad High Court. They submit that the authorities below had passed the provisional orders and had passed final order on 20/21-3-1998; that the appeals were preferred in November, 1998 before this Tribunal which were dismissed as time barred by the Tribunal by its order dated 18-3-1999; that pursuant to this, the authorities below detained certain goods of the appellants; that the appellants filed a writ petition in the Hon’ble High Court of Allahabad against detention of the goods. Ld. Counsels submit that the Hon’ble Calcutta High Court in the case of Mamuda Khateen v. Beniyan Bibi reported in AIR 1976 Calcutta 415, in para 7 held that “It seems to us that when an appeal is barred by limitation and an application is made under Section 5 of the Limitation Act for condonation of the delay alongwith the memorandum of appeal, until the application under Section 5 is allowed the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under Section 5 the appeal is non est. In that event, the question of rejecting a memorandum of appeal does not arise at all at this stage.” Ld. Counsels, therefore submit that in their case the appeal was non est hence should be considered and decided by the Tribunal. They also referred to the judgment of the Hon’ble Punjab and Haryana High Court in the case of Des Raj v. Om Prakash [AIR 1986 Punjab & Haryana 3] . They submit that the Hon’ble Punjab and Haryana High Court in that case held that “An order dismissing an appeal after dismissal of an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal is not a decree within the meaning of Section 2(2) of the Code. It is true that the rejection of a plaint on the ground of limitation is a decree and that Section 107(2) of the Code provides that the Appellate Court has the same powers and performs the same duties as are conferred by the Code on the Courts of original jurisdiction in respect of suit.” The Hon’ble High Court further observed that “A conjoint reading of both the rules shows that the Court can dismiss an appeal without issuing notice to the other side if the memorandum of appeal is admitted for consideration. However, if the appeal cannot be admitted for consideration for the reasons that it is barred by limitation, the question of adjudication by the court on merits under Rule 11 cannot arise. Thus, if the appeal is dismissed on the ground of limitation, the question of adjudication by the Court on merits cannot be said to have arisen. Therefore, such an order cannot be said to be a decree.” Ld. Counsels also refer to the judgment of the Apex Court in the case of Daryao and Ors. v. The State of U.P. and Ors. [1962 SCR 574]. They submit that in this case the Apex Court observed that “Even so the general principle of res judicata, which has its foundation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not a mere technical rule, that that cannot be applied to petitions under Article 32 of the Constitution. The Apex Court, therefore held that where the petition under Article 226 is considered on merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution; that where the petition under Article 226 is dismissed not on merits but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is no bar to a subsequent petition under Article 32 except in cases where the facts found by the High Court may themselves be relevant even under Article; that where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order; that the petition is dismissed in limine without a speaking order, or as withdrawn, there can be no bar of res judicata.”
5. Elaborating their arguments, ld. Counsels submit that the appellants had rightly considered the letter of the authorities below dated 22-5-2000 as the final decision and as against that they had filed appeals; that these appeals were within time and, therefore should be considered. Ld. Counsels also submit that their case was not considered on merits as the appeals were dismissed in limine. It was also argued that the appellants’ plea for considering their case on merits of the appeals should have been accepted. They, therefore pray that pre-deposit of duty may be waived and the appeals may be heard.
6. Shri M.M. Dubey, Ld. JDR refers to Cross-Objections filed and submits that the issue in this case was determination of ACP of the induction furnaces of the two units. He submits that when the Commissioner passed the final order determining the ACP of the furnaces under his Order dated 20/21-3-1998 the appellants came up in appeal before the Tribunal. He submits that this Tribunal held that there was no sufficient reason to condone the delay as the appeals were filed much beyond permitted time, the delay in filing the appeal was not condoned and consequently the stay petition and the appeals were dismissed. He submits that on the same issue the appellants preferred a further appeal by resorting to going to the High Court and obtaining orders without stating the full facts. Ld. JDR, therefore prays that the appeals may be rejected.
7. We have heard the rival submissions. We note that the issue in this case was fixing of annual capacity of production of induction furnaces owned by the appellants for manufacture of final products. We note that when the capacity was finally determined by the competent authority, the appellants filed appeals against that order. The appeals were filed late and, therefore an application for condonation of delay was also filed. Since the reasons given for late submission of the appeals were found unsatisfactory, the delay was not condoned and the stay petitions as well as appeals were dismissed.
8. Therefore the short point that arises for determination in these appeals is whether the order of the Commissioner communicated on 22-5-2000 is an appealable order. The second issue is whether the same issue for the same period can be agitated twice and the third issue is whether the Hon’ble High Court was appraised of full facts.
9. We note that the order dated 22-5-2000 is not appealable inasmuch as the final order was already passed by the competent authority which was agitated by the appellants before the Tribunal and the Tribunal had dismissed the appeals holding that there were no satisfactory reasons for condoning the delay. Thus, the order dated 22-5-2000 is only an administrative intimation and not appealable order as the earlier order dated 20/21-3-1998 had already attained finality.
10. The second issue is whether the appellants can approach the Tribunal for considering their matter second time when the same issue was already decided by the Tribunal. The answer to this query in spite of the emphasis is that the same cannot be agitated twice. Insofar as the Hon’ble Allahabad High Court judgment dated 29-11-2000 is concerned, we note that this judgment does not take into account the fact that the appeals of the appellants on the issue were already dismissed and decided by the Tribunal. Perhaps the Hon’ble High Court was not kept fully informed about the facts of the case.
11. In view of the above findings, we hold that the appeals are not maintainable and, therefore, the same are rejected. The Cross-Objections filed by the Revenue are also disposed of in the above terms.