ORDER
Shri S.L. Peeran
1. This is a miscellaneous application filed by the appellants seeking recall of the stay order No. SD dated 7.10.1995 passed by the Tribunal by which the appellants were directed to pre-deposit Rs. 25 lakhs on or before 29.11.1995 and report compliance on 30.11.1995. In the meanwhile, the appellants had challenged the order before the Andhra Pradesh High Court. The Andhra Pradesh High Court. The Andhra Pradesh High Court did not modify the stay order but extended the time for pre-deposit. The matter was challenged before the Apex Court. The Apex Court also did not modify the interim stay order of the Tribunal SLP Civil No. 10391/98 dated 22.9.98 arising from writ petition No. 25539/97 of the Andhra Pradesh High Court and discussed the petition.
2. The Registry ought to have listed the matter before the Bench for knowing as to whether they have complied with the terms of he interim stay order referred to. However due to inadvertence and due to the change and bifurcation of this Bench and due to non-availability of records the registry could not list the matter for knowing the position of due compliance of the Tribunal’s stay order. The registry was under impression that the matter has to be heard finally and therefore the case was listed for final hearing on 23.2.2001. The matter has been adjourned from that date on the plea made by the Advocate Shri Srinivas Raghavan that the appellants are engaging a senior advocate.
3. Today the Ld. Sr. Counsel pointed out that the appellants have filed the present application in the registry on 16.9.99 for recall of the stay order. The matter was referred to registry and the registry after due verification have sent the papers for due hearing. Ld. Sr. Counsel pointed out that the issue before the Commissioner (Appeals) was pertaining to an appeal filed by the revenue against the (sic) grant of exemption under a notification by the Asstt. Commissioner. The Commissioner (Appeals) reversed the order of the Asstt. Commissioner and held that the appellant was not entitled to the benefit of the notification No. 162/86 dated 11.3.86. The issue pertained only to the benefit of the notification and there was no quantification of the amounts and till date the revenue has not quantified the amounts. However due to inadvertence the appellants had made out in thy EA3 form that there was deposit to require to be made of a duty for the period 1.1.92 to 30.6.1992. The appellants Department had shown in EA3 form in para 8(A) (III) as 19,3,620/- in appeal No. 5335 / 95 the amount in EA3 form under column 8 (A)(III) has been shown to be as follows:
Rs 19,37620=00, Rs 3300320=50, Rs 2266840=00
4. Thus as shown from the above working out an amount more than Rs.74,04,124/-.
5. The appellant had engaged a Sr. Counsel in the matter for addressing arguments in the stay application. After detailed hearing the matte had been reserved for orders. It was pronounced directing the appellants to pre-deposit a sum of Rs. 25 lakhs by the stay order No. 164/95 dated 7.10.95. The order sheet of 6.2.96 shows that the interim order of High Court was taken note of with regard to the extension of time upto 1.7.1996. The order sheet indicated about the SDR making submission that he had no information regarding the present status of the stay order. It was adjourned to 15.7.96 to enable the SDR to get instructions. The matter came up for hearing on 15.7.96 on which date the hearing was adjourned to 31.7.96. We do not find from records further hearing before the Bench, except the order sheet which shows the matter was listed for final hearing on 23.2.2001.
6. Ld. Sr. Counsel refers to the plea made in this miscellaneous application. It has been stated that after the Supreme Court disposing of the petition, the Asstt. commissioner of Central Excise issued detention order. The same was challenged before the Division Bench of High Court of Andhra Pradesh in writ petition No. 35410/98/11 dated 1/96 and a specific plea was raised that there was no quantification of the amounts and as a consequence the letter dated 11.3.99 issued by the Central Excise office for intimating personal hearing regarding payment was not sustainable.
7. Ld. Sr. Counsel refers to the order in writ petition No. 3504/99 dated 1.3.99 by which the High Court of Andhra Pradesh have stated that the competent authorities to give the appellant an opportunity of hearing to the petitioner’s representative, “subject ofcourse to any order that may be passed by CEGAT”. Further, holding that the Department is restrained from enforcing the impugned detention order, till the concerned authority granted them a hearing. It has been stated that the petitioner is entitled to raise the question of limitation before the concerned authority.
8. Ld. Sr. Counsel submits that the authorities have not heard them till date and that there has been no quantification of thy sums. It is his contention that therefore the stay order is required to be recalled and the pre-deposit directions to be waived as it was not properly represented at the first stage.
9. Lr. DR submits that there is no compliance of the Tribunal’s stay order which has been confirmed by the Apex Court. Therefore the appeal does not survive and require to be dismissed for non-compliance. He points out that the appellants had only challenged the detention order before the Division Bench of High Court. The Division Bench gave direction to give them a hearing. However the Department did not interfere in the Tribunal’s interim order and clearly observed in their order that “subject ofcourse to any order that may be passed by the CEGAT”. Therefore, for the purpose of hearing the appeal under Section 35(F) of the Act, appellants are required to pre-deposit the amount. The stay order has reached finality by disposal off of the SLP before the Apex Court. The Tribunal cannot recall its order unless the orders of the High Court and the Apex Court are set aside or recalled. He seeks of dismissal of the appeal.
10. On a careful consideration of both the sides we notice form the EA3 form in both the appeals, the appellants have quantified the amount and sought for waiver of pre-deposit of Rs. 74 lakhs. The Tribunal after detailed consideration directed them to pre-deposit an amount of Rs. 25 lakhs out of Rs. 74 lakhs. The matter was challenged before the Hon’ble Andhra Pradesh High Court. The Hon’ble Andhra Pradesh High Court did not intervene or modify the order of the Tribunal except to grant extension of time. Aggrieved the appellants filed SLP being dismissed they challenged the same in a SLP Civil No. 1039/98 before the Apex Court. The SLP was also dismissed on 22.9.1998 and they were directed to pre-deposit Rs.25 lakhs. However they were granted 6 week’s time. The appellant did not bring to the notice of this Bench about the specific orders passed by the High Court and the Apex Court. The Revenue also did not move the matter. Till date the registry was not aware of these orders and they listed the appeal for final hearing in the usual way. It is noted today the Ld.Sr.Counsel pointed out about the miscellaneous petition on 10.9.1999. The Court Master was directed to locate the papers. At the direction of the Bench, the Court Master and the Registry were able to locate the paper and they have brought the same for hearing as a miscellaneous application.
11. We have considered the submission made by both the sides and we are of the considered opinion that the appellants themselves had quantified the amounts as per the show cause notice which were issued to them. The Ld. Sr. Counsel submits that the demands in the show cause notice were dropped the subsequently they were granted the benefit of the notification. The revenue was aggrieved with the said grant of the benefit of notification and had filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) allowed the Revenue’s appeal and held that they are not entitled to the benefit of the notification and upheld the revenue’s contention. The appellant had quantified the amount on their own and filed the satay application. Till dat they have not filed any application to seek modification of their EA3 form. Even against the detention order, in which they have filed the writ petition before the Hon’ble High Court of Andhra Pradesh the stay order has not been set aside and even the earlier order directing them to pre-deposit by Hon’ble High Court has not been recalled. They have filed writ petition No. 35403/98 which merely upheld their plea of non-grant of hearing by the authorities before issuing detention order and they also noted that it is “subject, ofcourse, to any order that may be passed by CEGAT. It is crystal clear that the Tribunal’s order under Section 35(F) directing them to pre-deposit the amount has not been recalled or modified. The matter has reached finality with the Hon’ble Apex Court dismissing SLP of the appellant challenging the confirming of the stay order by the Hon’ble Andhra Pradesh High Court. Therefore, the appellants ought to have pre-deposited the amounts in terms of the stay order. The plea to recall the stay order of the Tribunal on the ground that there has been no determination or quantification of the amounts, and the appellants themselves had quantified and they filed application for waiver is not sustainable. Till date the appeal memo has not been modified. The application is liable to be rejected for non-deposit of Rs. 25 lakhs within the stipulated time and in terms of the direction given by the Apex Court in SLP No.10391/98 dated 20.8.1998. Therefore, the appeal cannot be heard and the appeal is dismissed under provisions of Section 35(F) of the Act.
12. Appeals are dismissed.
(Pronounced & dictated in open Court)