ORDER
S.S. Sekhon, Member (T)
1. Heard both sides in the Application and considered the material and it is found–
(a) the matter of stay was dismissed by this Tribunal order no. C-III/1032/WZB/2003 dated 26.6.2003 which reads as follows:
“When this matter was called, none appeared for the appellants. On the last date of hearing i.e. on 21/05/2003, there was request for adjournment made. The matter was adjourned to 17/06/2003, as per the request received from the appellant, intimating that their advocate Shri J.M. Patel has gone abroad for medical treatment and was scheduled to return in the last week of June. No request for adjournment was received for the hearing fixed today. None appeared on behalf of the appellants. It appears that the appellants are not interested in pursuing this stay application. In that view of the matter the application for stay and of waiver of amount to be deposited is required to be dismissed for non prosecution.
2. The amount as determined by the lower authorities are directed to be deposited and compliance thereof he reported on 04/08/2003 and on such compliance being reported, the appeal shall be taken up for further orders.
3. Stay application disposed off in above terms.”
(b) Subsequently on 18.11.2003, another order was passed for dismissal for non compliance of order dated 26.6.2003 against which Misc (ROA) 68/04 is filed.
(c) The ROA was listed on 26.3.2004, when the Bench heard the matter and the result of the service of the notice and its receipt was to be ascertained. The postal authorities have not confirmed the non delivery. The learned Advocate has submitted as follows vide letter dt 29.3.2004.
“(1) At the hearing on 26.3.04 of above Misc. Application a submission was made viz: Unlike Other Forum this Tribunal posts notices by Registered Post only.
(2)As previous inquiry resulted that in November, 2003 and December, 2003 notices were sent by only Regd Post on account of shortage of staff. I had been told so for a dispatch on 18.11.03 in another appeal filed by Bhor Industries Ltd. In therefore had made similar argument in said appeal.
(3) I formed a general opinion on account of aforesaid inquiry that all notices were sent only by Regd. Post. I therefore repeated the same in above case. However on inquiry with Tribunal’s office in Room No. 309 1 learnt that the same condition applied for November and December 2003. Otherwise notices were sent by Regd A.D.
(4) I regret for forming a general opinion of such facts and arguing on basis thereof.”
(d) The Restoration Application No E/ROM/68/04 received on 8.1.2004 was heard and considered. The grounds taken in the modification application dt 8/1/03 considered. The grounds are
(i) Rs 7 lakhs paid as pre deposit to hear the appeal by CCE (Appeals) as per Bombay High Court’s order.
(ii) Rs 44 lakhs refunds are due to them from the department.
The pre deposit order made in terms of the High Court’s order cannot be ipso facto applied to a pre deposit required for an appeal before the Tribunal. As regards the submission on refunds due of Rs. 44 lakhs no material exist to verify the statement being submission made by the Id DR have force. There is no ground/material on record for restoration of appeal The restoration application is to be dismissed.
2. Ordered accordingly.
(Pronounced in Court)