ORDER
K.C. Mamgain, Member (T)
1. These 14 applications are for restoration of appeals which were dismissed on account of non-compliance of the stay order in terms of Section 35F of the Central Excise Act or Section 129E of the Customs Act. Since all these applications are having common question of law, these were taken up together for hearing and for passing common order.
E/ROA/35/03 in Appeal No. E/170/91 filed by Jose Type Rub Industries (P) Ltd.:
2. Shri A.S. Monappa learned Advocate appearing for the applicant pleaded that the application for restoration of appeals was filed on 10th March, 2003 under Rule 41 of CEGAT (Procedure) Rules, 1982. The applicant had filed stay application before Chennai Bench of the Tribunal and the Tribunal in it’s order No. 382/91, dated 18-7-1991 directed them to pre-deposit Rs. 75,000/- on or before 30-9-1991 and to report compliance. The amount of Rs. 75,000/- was not deposited by the appellants and therefore, the Tribunal by it’s Order No. 612/91, dated 30-9-1991 dismissed the appeal. The applicant could not pre-deposit the said amount as their factory remained closed from February, 1989 which has resulted in crippling the financial activity. In the mean time Canara Bank initiated proceedings to realize Rs. 7 lakhs. The dispute with Canara bank was settled in the year 2000. The applicants could restart the factory only in the month of June, 2002. As the factory remained closed for 13 years from 1989 to 2002, and they had no other source of income, it took time to arrange for finance after the opening of the factory. They pre-deposited amount of Rs. 75,000 on 3-1-2003. The application for restoration came up for hearing on 18-3-2004 and under Order No, 113/2004, dated 18-3-2004, the applicants were directed to deposit the entire adjudicated amount by 11-5-2004 for considering their application. They paid another amount of Rs. 75,000/- on 27-4-2004. By miscellaneous order No 264/2004, dated 11-5-2004 further times was given to them to report compliance by 8-7-2004. However, they instead of depositing the balance adjudicated amount requested for restoration of appeal on the ground that the Supreme Court in the case of Collector Land Acquisition Ananthnag and Anr. v. MST. Katiji and Ors. [1987 (28) E.L.T. 185 (S.C.)] has given guidelines for condonation of delay holding that substantial justice and technical considerations are pitted against each other, cause of substantial justice deserve to be preferred for the other side cannot claim to have vested rights in injustice being done because of non-deliberate delay.
3. Shri L. Narasimha Murthy, learned SDR appearing for revenue pleaded that in this case, there was a duty demand of Rs. 4,05,452.47 and a penalty of Rs. 50,000/- which the appellants were required to pay. However, the Tribunal under the stay order only asked them to pre-deposit the sum of Rs. 75,000/- within a period of 2 months. However, the appellants did not deposit the amount nor sought for any extension. Therefore, the appeal was dismissed. He stated that this appeal was dismissed by the Chennai Bench in 1991. The applicant have failed to deposit the entire adjudicated amount despite time given to them. They have not given any reasonable ground for such inaction on their part and pleaded that the restoration application may be dismissed. He stated that Supreme Court in case of Collector Land Acquisition Anantnag v. MST. Katiji (supra) has given further guidelines that delay can be condoned only when it is not occasioned deliberately or on account of culpable negligence or main fide. He relied on the following decisions of the Tribunal in support of his plea for dismissal of restoration application which has been filed after 12 years of dismissal of the appeal :-
(1) Rathi Graphics Technology Ltd. v. CCE, Jaipur [2002 (148) E.L.T. 1166]
(2) Sarvodaya Laboratory v. CCE, Mumbai [2002 (145) E.L.T. 647]
(3) Inventa Electronics Pvt. Ltd. v. CCE, Pune [2002 (140) E.L.T. 218]
(4) Nandganj Sihori Sugar Co. Ltd. v. CCE, Allahabad [2001 (132) E.L.T. 251]
E/ROA/92-94/03 in Appeal Nos. E/5363-5364/94, E/298/96 (West India Steel Co. Pvt. Ltd.)
4. In Appeal Nos. E/5363-5364/94, the applicants filed petition for restoration of appeal dated 24-11-2003, on the ground that the applicants have preferred appeal before the Tribunal along with stay application and the stay application was heard on 22-9-1994 and they were directed to pre-deposit a sum of Rs. 13 lakhs. They paid Rs. 1 lakh and preferred petition for modification of order dated 22-9-1994. The Tribunal by it’s order SV/M/118/95, dated 3-8-1995 modified the earlier order and directed the appellants to deposit Rs. 9 lakhs (including Rs. 1 lakh already paid as pre-deposit). They were given facility to deposit the amount of Rs. 8 lakhs in five monthly instalments of Rs. 1.5 lakh each and balance Rs. 50,000/- in the sixth instalment. However, they could not deposit the amount and the Tribunal dismissed their appeals for non-compliance of the pre-deposit under Order No. 16/96, dated 29-3-1996. The applicants pleaded that there was a lay-off in the factory which continued from January, 1996 to April, 1997 and during this period there was no person inside the factory and that is why they did not get any information regarding dismissal of the appeal. Recently they received a notice from Central Excise Department for payment of duty amounts, as their appeals were dismissed in 1996. They are now ready to pay the entire amount directed to be pre-deposited and requested for restoration of the appeal. They paid the amount of Rs. 6.5 lakhs towards pre-deposit on 15-1-2004 and the balance amount of Rs. 17,42,246/- was paid by them on 29-4-2004.
5. In Appeal No. E/298/96 it is stated that the Tribunal by Stay Order No. 172/96, dated 30-5-1996 asked the appellants to pre-deposit a sum of Rs. one lakh on or before 30-7-1996 and report compliance by 31-7-1996. Since the appellants have not reported compliance, appeal was dismissed by Order No. 1069/96, dated 31-7-1996. In their restoration application on 24-11-2003 they have given the above said grounds. However, the Counsel for the appellants informed that they have paid the amount of Rs. one lakh as pre-deposit on 15-1-2004 and the entire balance amount of Rs. 1,14,464/- on 29-4-2004 and he therefore pleaded that the appeal may be restored. These three applications for restoration of appeals were heard on 18-3-2004 and applicants were directed to deposit the full-adjudicated amount. The appellants have claimed that they have now deposited full disputed amount and their appeal may be restored.
6. Shri A.K.J. Nambiar, the learned Advocate appearing for the applicants relied on the decision of the Tribunal in the case of Master Recording Company [2000 (125) E.L.T. 1020] and pleaded that while Tribunal can dismiss appeal for non-compliance of the interim orders passed under the provisions of law it can also restore appeal on due compliance if sufficient cause is shown by the appellants. Me also relied on Tribunal’s decision reported in 2003 (161) E.L.T. 952 and 2004 (167) E.L.T. 513 where the principle laid down in case of Master Recording Company has been followed.
7. Shri L. Narasimha Murthy, learned SDR appearing for the department pleaded that after the dismissal of the appeal of the appellants in 1995, they neither paid the amount in instalments as was fixed by the Tribunal nor they filed any restoration application within reasonable time. The restoration applications were filed only on 14-11-2003 and the amounts were deposited as the Central Excise department were getting the amounts recovered. He relied on the decision of the Tribunal in the case of Rathi Graphics Technology Ltd. v. CCE, Jaipur [2002 (148) E.L.T. 1166] wherein it was held that the pre-deposit was made by the applicants after a delay of more than 1 1/2 years not being a reasonable delay cannot be condoned. He also relied on the decision of Supreme Court in the case of Income Tax Officer v. M.A. Mohammed Kunhi (AIR 1969 S.C. 430) and requested for dismissal of that applications.
E/ROA/64-65/03 in Appeal Nos. E/408,409/98 Hamsons Steels & Alloys :-
8. The applicants M/s. Hamsons Steels and alloys Pvt. Ltd., in their application for restoration of the appeal have stated that they had filed Appeal Nos. E/408/98 and E/409/98 respectively on behalf of Hamsons Steels and Alloys Pvt. Ltd. and Shri Shafiqur Rehaman it’s Managing Director. They were asked to pre-deposit a sum of Rs. 15 lakhs and Rs. 10,000/- respectively vide Stay Order No. S/376/77/98, dated 14-5-1998 within three months from the date of the Order. The Tribunal dismissed the appeal under it’s order 1820-1821/99, dated 23-7-1999 for non-compliance of the stay order. The restoration application filed earlier by both the appellants was considered by the Tribunal under miscellaneous Order Nos. 46-48/2000, dated 3-2-2000 and rejected the application for restoration of the appeal of M/s. Hamsons Steel Alloys as they had not complied with the slay order whereas the application filed by Shri Shafiqur Rehaman, Managing Director was restored to it’s Original No. E/409/99. The appeal of Shri Shafiqur Rehaman was dismissed under Final Order No. 178/03, dated 6-2-2003 for non-prosecution. In restoration application filed 24-9-2002 in Appeal No. E/408/98, M/s. Hamsons Steels and Alloys Pvt. Ltd., pleaded that due to bad financial condition and non-receipt of subsidy amount from Industries Department they could not made pre-deposit of Rs. 5 lakhs. Now they have received some funds and are ready to make pre-deposit. Shri Shafiqur Rehaman in his petition for restoration dated 6-5-2003 requested for recalling order dated 6-2-2003 passed by the Tribunal on the ground that non-appearance on his behalf on the date of hearing was not intentional but caused due to bona fide confusion due to change of Counsel. Both these restoration applications were heard on 18th March, 2004 when it was intimated that M/s. Hamsons Steel have deposited Rs. 2 lakhs on 30-12-2003 and Rs. 3 lakhs on 12-2-2004. M/s. Hamsons Steels were directed to pre-deposit the entire adjudicated amount to seek restoration of appeal and compliance was called for on 11th May, 2004. However they did not comply with the order. Shri Lakshmi Narayan learned Advocate appearing on behalf of Hamsons Steels and Alloys took the same arguments as were taken by the earlier two Counsels. He further stated that Shri Shafiqur Rehaman has already deposited the amount of pre-deposit and his appeal was dismissed for non-prosecution for which he has already given proper reason and therefore it may be restored.
9. Shri L. Narasimha Murthy learned SDR appearing for revenue pleaded that by miscellaneous order 111-112/2004, dated 18th March, 2004 M/s. Hamson Steels were directed to pre-deposit the entire adjudicated amount but they have not done so. Therefore their appeal may be dismissed.
E/ROA/408/02 in Appeal No. E/1308/98 – Sai Fabrics
E/ROA/410/02 in Appeal No. E/1310/98 – Shri Venkataramana Printing and Dyeing Works
E/ROA/413/02 in Appeal No. E/1265/98 – Gautami Textile Industries & Sales Corporation
E/ROA/13/02 in Appeal No. E/1325/98 – Shri Dhanalakshmi Cloth Dyeing and Printing Works.
10. These four applications for restoration of appeals have been filed by Gauthami Textiles, M/s. Sai Fabrics, Shri Venkataraman Printing and Dyeing Works, Dhanalakshmi Cloth and Dyeing Industries.
11. M/s. Gauthami Textiles Industries and Sales Corporation had filed Appeal No. E/1265/98 along with stay application before Chennai Bench of CEGAT against OIO No. 3/98, dated 20-2-1998 passed by Commissioner of Central Excise, Visak. Tribunal under it’s Stay Order No. 691/99, dated 6-5-1999 directed them to pre-deposit Rs. 10 lakhs. However the appellants did not pre-deposit the amount, hence by Final Order No. 3158/99, dated 20-12-1999, the appeal was dismissed for non-compliance under Section 35V of the Central Excise Act. The Final Order No. 3158/99, dated 20-12-1999 was recalled under Miscellaneous Order No. 75/2000, dated 9-2-2000 and the applicants were given further time to pre-deposit the amounts and report compliance by 6-4-2000, the time was further extended several times on different occasions. Finally since the appellants failed to deposit the amount the appeal, was again dismissed vide Order Nos. 343-346/01, dated 12-10-2001. Restoration application was filed on 17-10-2002. Thereafter, the case has been adjourned on various occasions for non-compliance.
12. M/s. Shri Dhanalakshmi Cloth Dyeing and Printing Works filed appeal No. E/1325/98 against OIO No. 2/98 ASR, dated 19-2-1998 passed by the Commissioner Central Excise, Visak along with stay applications. Appeal No. E/1308/98 was filed by Shri Sai Fabrics against OIO No. 4/98-ASR, dated 25-2-1998 passed by the Commissioner of Central Excise, Visak along with slay application and Appeal No. E/1310/98 was filed by Shri Venkataramana Printing and Dyeing Works against OIO No. 6/98-ASR, dated 21-2-1998 along with stay applications. The stay applications in these three cases were heard together and a common Stay Order Nos. 706-709/99, dated 5-5-1999 was passed and the appellants were directed to pre-deposit the following amounts :-
Name of the Applicant Amount of pre-deposit
(1) Dhanalakshmi Cloth Dyeing and Printing Rs. 2 lakhs
Works
(2) Shri Sai Fabrics Rs. 1.5 lakh
(3) Shri Venkataraman Printing & Dyeing Works Rs. 50,000/-
These appellants along with M/s. Gauthami Textiles instead of depositing the amounts took up the mailer before the High Court of A.P. and the High Court did not intervene with the order except to grant them extension of time by two months and subsequently extended by one month to comply with the terms of the Stay Order. The appellants did not comply with the order, therefore under Miscellaneous Order Nos. 1074 to 3077/99, the Tribunal gave them further extension of time and called for compliance by 5-4-2000. Further extensions were given tilt 12-10-2001. Since the appellants did not comply with the terms of pre-deposit, Appeal No. E/1325/98 was dismissed under Final order 1141 /01, dated 12-7-2001 under Section 35F and Rule 22 as abated. The other two appeals and appeal of Gautami Textiles were also dismissed under Order Nos. 343-346/01, dated 12-10-2001.
13. M/s. Dhanalakshmi Cloth Dyeing and Printing Works filed restoration application on 9-12-2002 and stated that Appeal No. H/1325/98 is dismissed both under the provisions of Section 35F of Central Excise Act as well as under Rule 22 of CEGAT (Procedure) Rules, 1982. As abated. The present application is filed by Shri S. Devi Prasad applicant’s son for continuation of the proceedings.
14. Shri Sai Fabrics in their ROA filed on 1.7-10-2002 have pleaded that up to 13-5-2003 they have paid Rs. 35,000/- and are therefore filing the application for restoration of the original appeal. They are small hand processors running labour oriented units and could not mobilize the amount for pre-deposit. They pleaded that the amount deposited by them may be considered as enough for compliance of stay order.
15. Shri Venkataraman Printing and Dyeing Works in their application filed on 17-10-2002 for restoration of appeal have stated that they have deposited Rs. 13,000/- till 11-9-2002 and are filing application for restoration of appeal. They are small hand processors running labour oriented unit who could not mobilize to pre-deposit amount and pleaded that the appeal may be restored.
16. Shri K.S. Ravi Shankar learned Advocate appeared for all the four appellants namely M/s. Gauthami Textiles, Shri Dhanalakshmi Cloth Dyeing and Printing Works, M/s. Sai Fabrics and Shri Venkataraman Printing and Dyeing Works. He pleaded that since appeal of M/s. Dhanalakshmi Cloth Dyeing and Printing Works abates, he is not pressing for its restoration. He is only pleading for the other three applicants. Shri Ravishankar pleaded that M/s. Gauthami Textiles have complied with the stay order by depositing the full amount of Rs. 10 lakhs as on 28-6-2004. Shri Sai Fabrics, has deposited the amount of Rs. 1,50,000/- as on 10-3-2004 and Shri Venkataraman Printing and Dyeing Works has deposited the amount of 50,000/- as on 18-8-2003, All these appeals were dismissed on 12-10-2001 for non-compliance of the stay order. He pleaded that in case of Hussein Haji Harun v. UOI – 1995 (77) E.L.T. 803 (Guj.), the High Court of Gujarat has held that inherent power to restore the appeal which has been dismissed is with the Tribunal on sufficient reason being given. He pleaded that the Supreme Court in case of Collector Land Acquisition v. MST. Katiji and Others [1987 (28) E.L.T. 185 (S.C.)] has held that when substantial justice and technical considerations are pitted against each other the cause of substantial justice deserves to be preferred. It must be grasped that judiciary is respected not on account of power to legalise injustice on technical grounds but because it is capable of removing injustices and is expected to do so. He also relied on the Tribunal’s decision in case of Master Recording Company v. Commissioner of Central Excise Chennai/Cochin, 2000 (125) E.L.T. 1020 and pleaded that there is no provision either under Section 35 of Central Excise Act or Section 129E of Customs Act laying down that no restoration be done after any stipulated period. Tribunal has inherent power to examine the issue for restoration and also the reasons furnished by the appellants. Me also relied on the decision in case of IC Gandhi Jari Corporation v. CCE, Baroda [1999 (113) E.L.T. 772] where the Supreme Court has held that in the interest of justice Tribunal to hear appeal on merit on appellants making pre-deposit of the said amount, lie further relied on the decision of Supreme Court in case of Income Tax Officer, Kannanore v. MA. Mohammed Kunhi.
17. Shri P.M. Saleem learned SDR appearing for the revenue pleaded that there is no equity in the tax collections. If the amount is required to be deposited by the appellants,’ they should deposit it and unless they deposit the amounts or where the Tribunal has reduced the amount to be deposited unless the same is not deposited, the appeal should not be restored. The appellants have not paid the full amount as was required to show their genuineness. They have only paid partial amounts. They cannot take undue advantage of the above case law and get the appeal restored whenever convenient to them. If they would have been genuinely pursuing the matter they would have taken precautions for mobilizing the funds and depositing the amount in time but despite giving them large number of opportunities they did not comply with the stay orders of the Tribunal. Therefore these appeals should not be restored as the appellants instead of paying the disputed amounts were taking the things very easy and had not even shown their alertness in filing the restoration application in time by complying with the terms of pre-deposit. Therefore all these miscellaneous applications should be dismissed. He relied on the decisions of the Tribunal in the following cases :-
(1) Inventa Electronics Pvt. Ltd. v. CCE, Pune (I) [2002 140) E.L.T. 218] wherein it was held that appeal cannot be restored after 4 years of passing of stay order on the ground that applicants’ financial position has improved especially when deposit not fully made and bona fides remain doubtful.
(2) Sarvodaya Laboratories v. C.C.E. Mumbai [2002 (145) E.L.T. 647] wherein it was held that stay order not complied with by appellants. Deposits made by appellants six months after the time prescribed expired and no application filed for modification, plea of financial hardship already held to be unsubstantiated at the time of passing stay order.
(3) Nandganj Sihori Sugar Company Ltd. v. CCE, Allahabad [2001 (132) E.L.T. 251] wherein it was held that order disposing the appeal received by appellants on 19-2-1998 and appellants took action on 17-2-2001 after delay of three years, sufficient cause has not been shown for such inordinate delay. Application for restoration of appeal rejected.
He pleaded that in all these cases sufficient time was given by the Tribunal by extending dates for pre-deposit but the appellants instead of trying to deposit the amount had failed to do so and when the appeals were dismissed thereafter also they have not taken reasonable time to deposit the amounts. Therefore all these petitions deserve dismissal.
E/ROA/1-3/04 in Appeal Nos. E/1924-1926/98, Malu Sleepers :
18. Shri S. Raghu learned Advocate pleaded that these three restoration applications are filed by M/s. Malu Sleepers Pvt. Ltd, Shri Nand Kishore Malu MD and Shri Odeyar Manager. Appeals were field by these applicants against OIA No. 280/98-CE., dated 26-5-1998 passed by Commissioner of Central Excise(Appeals), Bangalore along with stay applications. The Chennai Bench of the Tribunal vide Stay Order Nos. 83-85/99 observed that the Commissioner (Appeals) directed the appellants to pre-deposit the amount of Rs. 2 lakhs by M/s. Malu Sleepers Rs. 25,000/- by Managing director and Rs. 1,000/- by Odeyar. But the appellants did not deposit the amounts before the Commissioner (Appeals). Therefore he dismissed their appeals under the above said order. The Tribunal directed the applicants to pre-deposit these amounts by 12-4-1999. Since the applicants did not pre-deposit the amounts the appeals were dismissed under Final Order Nos. 1447-1449/99, dated 15-6-1999, their miscellaneous application for restoration of the appeal was also dismissed under Miscellaneous Order No. 910/99, dated 29-9-1999. In their ROA, which is for consideration before us filed on 1-12-2003 it is pleaded that the appellant M/s. Malu Sleepers Pvt Ltd. had deposited the entire amount of Rs. 11,74,686/- towards duty during the period from 27-3-2000 and 15-9-2003. The department has detained goods worth Rs. 32,33,572/- vide detention order dated 12-5-2000. In view of this fact, they have deposited the entire amount of duty demanded and therefore pleaded that [heir appeal may be restored and pre-deposit of interest and pre-deposit of Rs. 2 lakhs may be waived. Shri L. Narasimha Murthy learned SDR opposed the restoration the ground that penalty amounts have not been deposited.
M/s. Suha International filed miscellaneous application C/ROA/7/04 in Appeal No. C/5/01 for restoration of the appeal.
19. Shri S. Raghu learned Advocate appearing for the applicants pleaded that they had filed appeal before the Tribunal against Order No. 34/2000 Commissioner/Customs/Adjn, dated 27/29-9-2000 under which the Commissioner demanded duty draw back of Rs. 91,746/- from M/s. Suha International and imposed a penalty of Rs. 2 lakhs on Shri P.K. Ahmed proprietor of M/s. Suha International. The stay application filed by the applicants was decided under Stay Order No. 2000-2001, dated 12-3-2001. They were directed to deposit the draw-back duty amounting to Rs. 91,746/- by 30th April, 2001. The period was further extended up to 1st June, 2001 but since the applicants did not deposit the amounts, the appeal was dismissed for non-compliance of Section 129E of the Customs Act under Final Order No. 1222/01, dated 26-6-2001. Miscellaneous application for restoration of the appeal was filed by appellants on 18-12-2003 wherein it was pleaded that the applicant was suffering from heart problem. Hence he could not keep in touch with the development of the case which was attended by his son-in-law Shri P.M. Shariff. Shri P.M. Shariff without intimating the appellants about the progress of the case left for Saudi Arabia for a job some time in 2001. The applicants came to know that no pre-deposit has been made only when customs officers served notice for recovery of Govt. dues. Immediately the applicants mobilized the sum of Rs. 91,746/- and paid on 16-12-2003. In view of this the appeal may be restored. Shri P.M. Saleem learned SDR opposed the restoration on the ground that full adjudicated amount has not been deposited.
20. We have carefully considered the submissions made by both the sides. We find that the main argument which have been taken on behalf of the applicants are that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred. However, we also find that the S.C. has also laid down the guideline that when the delay is occasioned deliberately or on account of culpable negligence or mala fides then these grounds are also to be looked into. We also find that right to appeal is a statutory right and it is subject to conditions, if the conditions are not fulfilled then the Tribunal has right to dismiss the appeal. Under Section 35B when appeal is filed before the Tribunal then it is subject to the provisions of Section 35F of the Central Excise Act. According to Section 35F where in any appeal, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under the Central Excise Act, the person desirous of appealing against such decision or order shall deposit with the adjudicating authority. The duty demanded or penalty levied provided that where in any particular case the appellate Tribunal is of the opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the interest of revenue. Thus it is clear that the Tribunal has been given power to see that undue hardship is not caused to person who has filed appeal in respect of duty of central excise demanded or penalty imposed but the Tribunal has also to see and safeguard the interest of revenue. Keeping these points in mind, now we examine the restoration of appeal applications field by the respective applicants.
21. We find that the applicant M/s. Jose Tyrerub Industry has filed the restoration application on 10th March, 2003, giving the ground for restoration that by Order No. 612/91, dated 30-9-1991 their appeal was dismissed for not pre-depositing the amount of Rs. 75,000/- on or before 30-9-1991. The reason given by them for non-compliance is that their factory remained closed from February, 1989 onwards and Canara Bank initiated proceedings to realize Rs. 7 lakhs from them. We find that the same grounds was given by them before the Tribunal in 1991 when the order for pre-deposit was passed under Slay Order No. 382/91 and after considering this ground only, the Tribunal asked them to deposit the amount of Rs. 75,000/- out of the total amount of Rs. 4,05,452.47 as duty and Rs. 50,000/- as penalty. The appellants thereafter neither approached the Tribunal for extension of lime nor complied with the pre-deposit. Accordingly the appeal was dismissed in terms of Section 35F of the Central Excise Act. We find that since 30-9-1991 till 10-3-2003 when the application for restoration of appeal was filed the applicants have not taken any steps either to pre-deposit the amount or to get the appeal restored. This clearly shows that there has been total negligence on the part of appellants to pursue the appeal or to deposit the amounts. We have also to see the revenue interest and we find that after a lapse of 13 years it cannot be possible for the revenue to keep the records of the case and to contest the appeal which was dismissed in 1991. The appellant had been totally negligent as they neither deposited the amount nor pursued the matter before the Tribunal for further extension of the stay. This application for restoration of appeal came up for hearing on 18-3-2004 and under Order No. 113/2004, dated 18-3-2004, they were directed to deposit the entire disputed amount but they failed to do so despite giving extensions. Therefore we do not find any reason to restore the appeal.
22. In restoration application of M/s. West India Steel Company, we find that the restoration application has been filed on 24-11-2003. In the application it is pleaded that the Tribunal under it’s order dated 22-9-1994 directed the applicants to deposit a sum of Rs. 13 lakhs as a pre-condition for hearing the appeal. Since the appellant did not deposit the amount, the Tribunal by order dated 3-8-1995 modified the earlier order directing the petitioner to deposit Rs. 9 lakhs including Rs. 1 lakh already paid as pre-deposit and they were given facility to pay in instalments of Rs. 1.5 lakh each in five monthly instalments and Rs. 50,000/- in the last instalment. The appellant did not appear before the Tribunal for reporting compliance nor filed any application for extension. Therefore by Order No. 6/96, dated 29-3-1996, the Tribunal dismissed the appeal. The appellant has submitted that from January, 1996 to April, 1997 they had declared a lay off in the factory and they could not gel information regarding dismissal of the appeal. Now when recently the Central Excise Department pressed for recovery of the amounts then only they could know about the dismissal of the appeal. The appellants have now deposited the full disputed amount. Therefore considering the fact that substantial justice should not be denied on technical consideration, we are of the view that these three appeals be restored to their original numbers for decision on merit.
23. We find that M/s. Harrisons Steels and Alloys were directed to pre-deposit an amount of Rs. 15 lakhs vide Stay Order Nos. S/376-377/98, dated 14-5-1998, within three months from the date of the order. Since they did not comply with this, extension of time was granted to them by miscellaneous Order No. 638/98, dated 21-10-1998 and Miscellaneous Order No. 35/99, dated 5-1-1999, but they did not comply with the stay order. The appeals were dismissed vide Final Order Nos. 1820-1821 /99, dated 23-7-1999 under Section 35F of Central Excise Act. Thereafter both the appellants namely M/s. Hamsons Steels and Shri Shafikur Rehaman filed restoration applications which were decided by Miscellaneous Order Nos. 46-48/2000, dated 3-2-2000 by which the appeal of Shri Shafikur Rehaman was restored to it’s Original No. E/409/99, as he had pre-deposited the amount. Thereafter the appeal of Shri Shafikur Rehaman was dismissed under Final Order No. 178/03 for non-prosecution. Both the appellants filed restoration applications which were decided by Miscellaneous Order Nos. 11 1-112/2004, dated 18th March, 2004 [2004 (167) E.L.T. 513 (Tribunal)] by which M/s. Hamsons Steels were directed to pre-deposit entire adjudicated amount within 6 week from the date of order and on such deposit only the application for restoration would be considered. Since the entire adjudicated amount was not deposited by the appellants M/s. Harrisons Steels, we do not find any reason to restore the appeal as in case of Master Recording Company Ltd., reported in 2000 (125) E.L.T. 1020, the requirement for consideration of restoration application where there is a long delay was that first the entire adjudicated amounts would be deposited, thereafter only the application for restoration can be considered. Since the appellants failed to deposit the amount, we do not find any reason to restore the appeal. Therefore their restoration application is rejected. However, the restoration application of Shri Shafikur Rehaman which was rejected due to non-prosecution and for which he has given proper reason for non-appearance is restored.
24. Regarding the restoration application filed by M/s. Gauthami Textile Industries, Dhanalakshmi Cloth Dyeing & Printing Works, Venkataraman Printing and Dyeing Works and Shri Sai Fabrics, we find that two times the appeals have been dismissed for non-compliance. We find that Shri Ravi Shankar, the learned Advocate appearing for these four applicants did not pursue the restoration application of M/s. Dhanalakshmi Cloth Dyeing and Printing Works as appeal is abated due to death of it’s proprietor Shri S.B. Ramanna who expired on 17-3-2001. In case of other three appeals which were dismissed on 12-10-2001 for non-compliance of stay order, we find that these appellants have deposited the amount of pre-deposit fixed for them under the stay order passed in 1999. They took five years to deposit, the pre-deposit amount and then came for restoration of appeal on the ground that the substantial justice should not be suffered on account of technicalities. We find that although large number of opportunities were given to the appellants for pre-depositing the amount but they had not done so. Finally when their appeals were dismissed under Order Nos. 343-346/01, dated 12-10-2001, they did not come for restoration immediately by complying with the stay order but took one year to file the restoration application and again did not comply with the stay order, If after such a long delay they are coming for restoration of the appeals, it was necessary for them to pro-deposit the entire adjudicated amount as has been held in case of Master Recording Company v. CCE, Chennai (supra). But instead of depositing the entire adjudicated amount they only deposited the amount of pre-deposit which was fixed for them in 1999. Thus we find that the appellant instead of seriously trying to deposit the amount and coming forward with proper reason for non-pursuing the restoration application after dismissal of the appeal cannot take a plea of substantial justice as the Tribunal has also to see the revenue interest. It was also made clear to them that these cases will be considered only when the entire adjudicated amount is deposited. However, since the adjudicated amounts were not deposited these applications are also rejected. They cannot take undue advantage of gelling the appeal restored whenever convenient to them. If they would have been genuinely pursuing the matter they would have taken precaution for mobilizing the funds and depositing the amounts in time. By following ratio of the decision relied upon by the learned SDR in case of Inventa Electronics v. CCE, Pune, Sarvodaya Laboratory v. CCE, Mumbai, we reject these applications.
M/s. Malu Sleepers :
25. We find that in case of Malu Sleepers, Shri Nand Kishore Malu and Shri Odeyar their appeals were rejected by the Commissioner Appeals for non-depositing the amount fixed for pre-deposit. Subsequently when the Tribunal also directed them to pre-deposit the respective amounts they failed to do that and their appeals were dismissed under Final Order Nos. 1447, 1449/99 and their miscellaneous application for restoration of the appeals were also dismissed under Order No. 910/99, dated 29-9-1999. They have again come up with miscellaneous application for restoration on 1-12-2003. They had come up for restoration on the ground that the department has detained their goods. We do not find any reason to restore the appeals of these appellants, as right from the stay order given by the Commissioner, they have not tried to deposit the amount which shows their culpable negligence. Their appeal as well as application for restoration of appeals were also dismissed by the Tribunal in 1999, Now coming up for restoration after 4 years of the dismissal, when the department has detained their goods for recovery and recovered duty clearly shows their negligence for non-deposit of the adjudicated amounts. They have not deposited penalties. We therefore do not find any reason to restore these appeals and their applications are rejected.
M/s. Suha International:
26. In this case the restoration application has been filed after more than two years of rejection of the appeal. This shows that the person was not diligent enough to pursue the matter and to deposit the amounts which was fixed to be pre-deposited if there is a long delay in filing the restoration application then the entire adjudicated amount is required to be -deposited before such application is considered for restoration appeal as has been held by the Tribunal in case of Master Recording Company (supra). Since in this case, the entire adjudicated amount has not been deposited and the delay is more than two years, therefore following the decision of the Tribunal in case of Master Recording Company, we do not find any justification for restoration of the appeal and the same is rejected.
27. Thus three restoration of appeal applications of M/s. West India Steel Company and application of Shri Shafikur Rehaman, M.D of M/s. Ham-sons Steel are allowed. These four appeals are restored to their original numbers and all other applications are rejected.