ORDER
S.L. Peeran, Member (J)
1. In all these applications, common question of law is involved, hence they were taken up together for hearing for the purpose of passing a common order. The question involved in these applications pertains to restoration of appeals which were dismissed for the individual cases on account of non-compliance of the stay order in terms of Section 35F of the Act.
2. In some case, the Miscellaneous applications seeking restorations, wherein we have dismissed the same as there was no sufficient compliance. In few cases, after the lapse of time, the parties have deposited the full amounts due as per the impugned order and have requested for restoration of their appeals. In few other cases, there has been no compliance of the stay order, yet they have pleaded for restoration in peculiar facts of their cases. The individual facts of each case is brought out herein below.
E/Misc/188/99 in E/SB/5341/93
THE MASTER RECORDING COMPANY
2. In the case of The Master Recording Co., the applicants had filed restoration application No. E/ROA/551 /98, which was not accepted and the application was dismissed vide Miscellaneous Order No. 598/99 dated 28.6.99 as reported in 2000 (117) ELT 216. It is noted in the said Miscellaneous order that the application was filed on second time seeking restoration of the appeal which had been dismissed for non-deposit of the amounts as directed by the Tribunal vide stay order No. 234/93 dated 29.7.93. By the stay order, the appellants were directed to pre-deposit a sum of Rs. 1.25 lakhs as against the total amount confirmed to the extent of Rs. 5,15,258.70. Initially, they had pre-deposited only Rs. 25,000 and as there was no compliance, the appeal was dismissed on 31.3.94. The first restoration application No. 852/97 was also dismissed by Miscellaneous order No. 525/97 dated 15.10.97. In the said order, it had been made clear by the Tribunal that unless or until compliance is made by making full pre-deposit of the sum of Rs. 125 lakhs, the appeal cannot be restored. The appellants had taken their own time to pre-deposit of Rs. 1 lakh and it had been done on 27.5.98 as against the stay order dated 29.7.1993, thus, there was a delay of about five years. After a great detailed discussion by the Tribunal and after noting the case laws cited by both sides, the restoration application was not allowed in view of the inordinate delay and also because they have not pre-deposited the amounts deliberately from 1993 onwards.
3. In this application, the applicant seeks for recall of the said Miscellaneous order No. 598/99 dated 28.6.99 and to accept the restoration application and restore the appeal to its original number for consideration on merits. They stated that the appeal initially was dismissed for non-compliance vide Order No. 108/94 dated 31.3.94 due to certain materials not having been placed before the Tribunal during the hearing. They stated that after the order was passed dismissing their appeal, they filed a Miscellaneous application on 10.8.94 seeking modification of the said order, which is still pending and not disposed of. They stated that on 30.11.94, they had submitted a reminder and thereafter filed a restoration application on 3.2.1995 to be heard along with application for modification of stay order. On 21.8.97, they have filed another letter in the Registry seeking listing of the earlier application for modification of the stay order. On 15.10.97, the ROA filed for the first time was disposed of by Miscellaneous Order No. 527/97 dated 15.10.97 indicating that the appeal cannot be restored unless stay order is complied with. They stated that on 27.5.98, they have deposited the balance amount of Rs. 1.00 lakh in terms of the stay order within five months and they have filed the second ROA application No. 551/98 on 17.6.98 along with COD application No. 1267/98 seeking condonation of delay in depositing the amounts. However, the application was rejected vide Miscellaneous Order No. 598/99 dated 28.6.99. They stated that the delay of five months in depositing Rs. 1.00 lakh after the first dismissal was due to lack of liquidity and they have to borrow the amounts. They stated that their liquidity position should have been considered while dismissing the second ROA application vide Miscellaneous Order No. 598/99 dated 28.6.99. They have also raised the aspect pertaining to merits of the case that they have a very strong case on merits and if the application is not allowed, then they will be put to severe hardships. They further pointed out that on 28.1.2000 they have already deposited the balance amount of Rs. 4,40,259, which includes Rs. 50,000 representing penalty. They now stated that as they have pre-deposited the full amounts and TR 6 challans are produced in proof thereof and as there has been status quo in the matter and the Revenue has not recovered any amounts due, therefore, the right of appeal should be restored to them. They stated that despite the order passed vide Miscellaneous Order No. 598/99 dated 28.6.99, applying the ratio of the judgment of GTC Industries v. CCE as reported in 1997 (90) ELT 406 and that of the HonTjle Apex Court judgment in the case of Nirlon Synthetics Fibres & Chemicals Ltd. v. UOI as reported in 1998 (99) ELT 22(SC), the application is required to be restored as the judgment in both the cases are distinguishable. They stated that in the case of GTC Industries (supra), the Tribunal did not restore the appeal as the party had not pre-deposited the amount, while in the case of Nirlon Synthetics Fibres & Chemicals Ltd. v. UOI (supra), they pointed out that case pertaining to non-restoration of Writ Petition due to negligence of the parties in appearance which is not the facts in the present case. It is contended that the right of appeal is a statutory right subject to pre-deposit of the amounts in terms of Section 35F of the Act and when there is a complete deposit of the amounts that right is required to be restored to them, as the conditionality of the hearing of appeal has since been complied with full deposit and the earlier two orders, dismissing the appeals on the ground that there was partial deposit, should not come in the way of restoration of their appeal, as the impediment of the Section 35 of the Act has been crossed. It is further argued that there is no restriction or limitation under the provisions of Section 35F of the Act for restoring the appeal as in the case of filing the appeal beyond the statutory period and those provisions cannot be incorporated or read with the provisions of Section 35F of the Act. The right of restoration continues despite lapse of time and so long as the bonafides can be shown and full deposits having been made, then the appeal is required to be restore to its original number. He submitted that the appellants were faced with severe financial difficulties and they had to raise loans from various parties to overcome the fina trial distress before arranging for the amounts and that being the case, the hardships p leaded by them is required to be accepted as the Revenue is not prejudiced and their interest has not suppressed in not depositing the entire amounts.
4. Learned DR opposing the prayer for restoration, submits that vide a detailed Order No. 598/99 dated 28.6.99, the Tribunal had rejected their application in the light of the citation referred to and, therefore, there is no cause for restoring the appeal. Even if the appellants had fully deposited the amounts, as the delay is inordinate and for such inordinate delay, the Hon’ble Apex Court itself has not restored the Writ Petition in the case of Standard Audio & Video Pvt. Ltd. He points out that the Tribunal itself has noted the appellants had overdraft facility of Rs. 30 lakhs and no bona fides have shown by them and therefore, the situation has not altered with regard to bona fides and hence, there is no question of restoration of appeal, after the same was dismissed on 31.3.94.
C/ROA/298/99 IN C/211/98
Shri K. Arumugam
5. By Stay order No. C/327 to 329/98 dated 6.5.98, the appellant and two others stay applications were disposed of by a common order, as the appeals arose from a common impugned order. The appellant was directed to pre-deposit a sum of Rs. 10,000 within a period of three months and as the said amount was not deposited by the appellant, while there were compliance of other two appellants, therefore, the appeal of the present appellant alone was dismissed for non-compliance, after granting one extension of time vide Miscellaneous Order No. 610/99 dated 9.10.99 and the appeal was dismissed vide Final Order No. 2472/98 dated 13.11.98.
6. By this application, the applicant submitted that he has faced with severe financial constraints and hence was unable to raise funds and could not comply with the order of the Tribunal, despite grant of extension of time. He submits that now the applicant is willing to deposit the amounts and he should be given Challans for depositing the amounts. Learned Counsel mentioned that when the party approached the authorities, they have not permitted him to deposit the amounts, therefore, he seeks permission to deposit the amounts and seeks restoration of the appeal. Learned Counsel for the appellant argued that as the appeals of the other two persons are still pending, the delay in filing the application should be condoned. He submits that non-deposit of the amount is on account of the Revenue not giving T.R. 6 Challans, therefore, he seeks direction to the Revenue to issue T.R. 6 challans for depositing the amounts.
7. Learned D.R. submits that as the party has not deposited the amounts, the question of restoration does not arise and the Tribunal cannot be issued (sic) [cannot issue] direction to Revenue to issue T.R. 6 challans for accepting the pre-deposit, as the right of appeal can be exercised only after pre-depositing the full penalty amount.
E/ROA/279/99 IN E/5387/93
M/s. Steel Industrials Kerala Ltd.
8. By stay order No. 277’/’93 dated 3.9.93, the stay application was rejected and the appellants had been directed to pre-deposit the entire duty amounts in terms of the impugned order on or before 29th October, 1993 and to report compliance on that date. The appellants Miscellaneous application for modification was also not accepted by Order No. 49/94 dated. 1.2.94. He was directed to pre-deposit the entire amounts before 31.3.94, on which date he had only deposited Rs. 25,000, as against the entire duty amount of Rs. 3,90,802.21. The appellant had again sought restoration after depositing further sum of Rs. 15,800 on 16.1.96, however, the same was not accepted and the application was dismissed by Miscellaneous Order No. 63/96 dated 24.5.96. While dismissing the application, the Tribunal had observed that they may seek restoration after the pre-deposit of the full amounts along with the application for condoning the delay in pre-depositing the amounts. They have pre-deposited Rs. 50,000 on 10.7.96 and the balance of Rs. 3.00 lakhs on 20.9.99 and hence there is a delay of six years from the date of stay order.
9. Learned consultant Sri C. Chidambaram submits that the delay has to be worked out from the Miscellaneous Order No. 63/96 dated 24.5.96, wherein it was observed that they may seek restoration after fully depositing the amounts. He submits that the appellant has been faced with severe financial hardships and they could not pre-deposit the amounts. He further submits that there was status quo in the matter inasmuch as the Revenue did not recover the amounts and therefore the delay in pre-depositing the amounts is required to be condoned and as the amounts had been fully deposited, the right of appeal should be restored to the appellants in the interest of justice. The arguments addressed by the learned Counsel appearing for Master Recording company was adopted by the learned consultant in this matter.
10. Learned D.R. opposes the prayer for restoration of appeal, as there was inordinate delay of six years from the date of the stay order in depositing the amounts.
E/ROA/266/99 IN E/360/96
M/s Evertaut Steels Pvt. Ltd.
11. In this case, the appellants vide stay order No. 121/96 dated 6.5.96 had been directed to pre-deposit a sum of Rs. 60,000 on or before 27.6.96 as against duty confirmed to the extent of Rs. 1,59,539 and penalty of Rs. 20,000 in Order-in Original No. 3/96 dated 9.1.96 passed by the Commissioner of Central Excise, Chennai, The appeal came to be dismissed vide final order No. 938/96 dated 28.6.96 for non-deposit of the amounts. The appellant appeared in person and submits that they could not pre-deposit the amounts due to sickness of the company and the financial problem faced by them and due to their bankers stopping the transactions and proceeded to recover all the amounts before the Debts Recovery Tribunal, They contended that the Revenue has not recovered the amounts and there was status quo in the matter and the right of appeal should be allowed to be exercised by them. Due to their financial difficulties, they prayed for waiver of pre-deposit and they seeks for condonation of delay in filing the application on 2nd December, 1999 belatedly.
12. Learned DR submits that there has been no compliance of the stay order and restoration cannot be effected without pre-deposit of the amounts and right of appeal is not absolutely by condoning as held by the Kerala High Court in the case of Rubicon v. CCE as reported in 1998 (44) ELT401. He also contends that the dismissal for non-deposit is justified as held by the Tribunal in the case of Kanpur Pesticides & Chemicals Pvt. Ltd. v. CCE as reported in 2000 (36) RLT 851, which followed the Honble Apex Court judgment in the case of Nairin Chandra v. CBEC and Anr. as reported in 1981ELT 679 (SC) and that of Miles India Ltd. v. ACC as reported in 1987 (30) ELT 641 (SC).
C/ROA/80-82/99 IN C/350/96 I/w. C/351 & 352/96
M/s Macnair Exports P. Ltd. S/Shri H.R. Bhatt & Ferosh B. Hajiani
13. By Order-in-Appeal No. 203/95 dated 22.11.95, the Commissioner of Customs, confirmed the duty demand of Rs. 14,72,075 and penalty of Rs. 5.00 lakhs besides imposing penalty of Rs. 1.5 lakhs each on two individuals namely Sri Firosh B. Hajiani and Sri H.R. Bhatt. By Stay Order No. 28-30/98 dated 20.1.97, the appellants M/s Macnair Exports Ltd. was directed to pre-deposit Rs. 6.5 lakhs towards duty and Rs. 1,00,000 towards penalty and other two appellants were directed to pre-deposit Rs. 50,000 each on or before 30th March, 1997. The order was not complied with despite several extensions granted to them and ultimately by final order No. 2030-2032/97 dated 31.7.97, the appellants were dismissed in terms of Section 129E of the Customs Act. Now it is statid by Sri H.R. Bhat that he has pre-deposited the amount of Rs. 50,000 on 29.4.97, but he could not appear on the date of hearing to indicate about his pre-deposit, which resulted in dismissal of the appeals. He submits that he has pre-deposited the amounts and therefore, his application No. ROA/81/ 99 be allowed as there is due compliance. The same submission is made by Sri Feroz B. Hajiani, while the appellant company M/s. Macnair Exports Ltd. had not deposited the amounts as directed in the stay order. They submitted that they are faced with severe financial hardships and they have stopped their activities for the last two years and there was a communication gap between them and the counsel and hence they could not file further application seeking extension of time. Therefore, they seek f o r waiver of the said amounts directed to pre-deposit and the appeal be restored to its original number.
14. Learned Advocate Sri Murugappan presses for restoration of the appeals of S/Shri Feroz B. Hajiani and H.R. Bhatt, as the pre-deposit of Rs. 50,000 each has been made much earlier before the order of dismissal and the dismissal was as a result of the appellants not bringing to the notice of the Tribunal about the pre-deposits made. As regards the non-deposit of the company, he submtis that the financial statement of the company discloses severe losses and therefore, the Tribunal is required to be recalled its order of dismissal and grant them waiver due to financial difficulties pleaded by the appellants. He submits that the Tribunal can restore the appeals on deposit of the amounts as held in the case of Khatau Makanji Spg. & Wvg. Ltd. A similar order for recall of the dismissal was made in the case of Western India Enterprises Ltd. As reported in 1994 (74) ELT 46. He submits that these two judgments should be applied to the applications filed by S/Shri Feroz B. Hajiani and H.R. Bhatt. However, he pleads for recall of the order of pre-deposit in the case of Macnair Exports case. He submits that judgment of Master Recording Co. probably would not apply to the facts of this case.
15. The prayer is opposed by the learned D.R. on the ground that M/s. Macnair Exports P. Ltd. has not complied with the terms of the order and hence the appeal cannot be restored.
E/ROA/223/99 in E/361/95
Star Carbides v. CCE, Cochin
16. The appellants had been directed to pre-deposit vide stay order No. 160/96 dated 21.5.96 a sum of Rs. 1.5 lakhs on or before 30th July, 1996 as against the confirmation of duty amount of Rs. 6,01,500 and Rs. 5,000 as penalty in the impugned Order-in-Original, which was confirmed in Order-in-Appeal. By Miscellaneous Order No. 239/96 dated 25.10.96, the restoration application filed was dismissed as they had pre-deposited only Rs. 25,000. The appellants have deposited the balance amount of Rs. 1,20,000 vide T.R.6 challans dated 25.1.99 and contended that the Miscellaneous Order No. 239/96 mentions the pre-deposit as Rs. 25,000 while the deposit made was Rs. 30,000 and hence there is full deposit in terms of the stay order and hence seeks for restoration of the appeal. They stated that the Miscellaneous order No. 239/96 dated 25.10.96 had given them an option to seek restoration by explaining the delay after pre-depositing the amounts as directed by stay order. The learned Counsel submits that the delay in depositing the amounts in terms of the stay order was due to financial distress and the Revenue has not recovered the amounts and hence there is status quo in the matter and the appeal is therefore, required to be restored in the matter.
17. The prayer is opposed by the learned DR on the ground that there is no pre-deposit in the matter in terms of the Order-in Original and the inordinate delay cannot be condoned despite status quo in the matter.
18. We have carefully considered these submissions made by all the parties and have noted in detail the sequence and facts of the case as above. It is necessary before coming to a finding on their pleas to examine the powers of the Tribunal under provisions of Section 35F of the Act. Section 35F of the Act is re-produced below–
Deposit, pending appeal, of duty demanded or penalty levied–Wherein any appeal under this Chapter, 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 this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied:
Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.
The above provisions of law has been subject matter of discussion in various judgments pronounced by the Hon’ble Apex Court, High Courts and Tribunal. In the case of Shri Shyam Kishore and Ors. v. Municipal Corporation of Delhi and Anr. as reported in J.T. 1992 (5) SC 335 at page 351, wherein the Hon’ble Apex Court observed as follows
…Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is statutory right and it can be circumscribed by the conditions in the grant….
Likewise, the Hon’ble Apex Court in the case of Vijay Prakash & Jawahar v. CC (Preventive), Bombay as expressed a similar view under the provisions of Section 129A and 129E of the Customs Act, which is parimateria to the provisions of Section 35F of the Central Excise Act in the following terms:
…The right of appeal contemplated under Section 129A and Section 129E is a conditional one and the legislature in its wisdom has imposed that condition of depositing duty demanded or penalty levied. Although Section 129E does not expressly provide for rejection of the appeal for non-deposit of duty or penalty, yet it makes it obligatory on the appellant to deposit the duty or penalty pending the’ appeal, failing which the Appellate Tribunal is fully competent to reject the appeal. The proviso, however, gives power to the Appellate Authority to dispense with such deposit unconditionally or subject to such conditions in cases of undue hardships. It is a matter of judicial discretion of the Appellate Authority. That discretion must be exercised on relevant materials, honestly, bona fide and objectively. Once that position is established it cannot be contended that there was any improper exercise of the jurisdiction by the Appellate Authority.
Thus while refusing to entertain appeal unless certain amount is deposited, where the Appellate Tribunal considered the relevant factors, namely, the probability of the prima facie case of the appellant and the conduct of the parties it could not be said that appellant’s right of appeal is whittled down by an alteration of procedure. The purpose of the Section is to act in terrorem to make the people comply with the provisions of law.
Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications.
The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. It is not that law that adjudication by itself following the rules of natural justice would be violative of any right–Constitutional or statutory–without any right of appeal, as such. If the Statute gives a right to appeal upon certain conditions, it is upon fulfilment of those conditions that the right becomes vested and exercisable to the appellant….
In view of the above ratio laid down by the Hon’ble Apex Court, it is clear that right of appeal under the Central Excise Act and Customs Act, is neither absolute nor ingredient of natural justice but a statutory right and circumscribable by the conditions in the grant and that no right to prefer appeal is available unless pre-deposit is made in terms of the provisions quoted and further the discretion is granted to the Tribunal to grant waiver subject to the conditions laid down by it, after examining the prima facie case of the party and also taking into consideration the financial hardships that would be caused to the appellants, if they are called upon to pre-deposit the entire adjudicated amounts. However, while passing such an order, the Tribunal has to safeguard the interest of the Revenue. The Hon’ble Apex Court has now further held that if the conditions are not complied with in terms of the interim order passed under the above-noted provisions, then it is observed that the appeal would not remain pending for ever and the Appellate Authority would be fully competent to reject for non-compliance in the case of Navin Chandra Chhotelai v. CBEC and Ors. as . Thus it is very clear that the Tribunal can dismiss the appeals for non-compliance of the interim orders passed under the provisions of law. Therefore, we hold that the dismissal order in all the above appeals for non-compliance is justified and in keeping with the law and the ratio of the Hon’ble Apex Court judgment which has been followed by the High Court and the Tribunal time and again.
19. The question that arises further is as to whether the appellants’ prayer in their respective cases could be considered in circumstances, where the appellants have pre-deposited the entire amounts.
20. In the case of Hussain Hazi Harun v. UOI as reported in 1995 (77) ELT 802 (Guj.), the question of restoration of appeal which was dismissed for non-compliancce came up before the Court and the Hon’ble High Court after considering the issue in the light of the majority order of the Tribunal noted that the Tribunal has got inherent powers to restore the appeal which has been dismissed on sufficient reasons being given. After noting the observations of the Hon’ble Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji and Ors. as , the Court held that substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. Further observation in that judgment was also noted that it must be grasped that judiciary is respected not on account of power to legalize injustice on technical grounds but because it is capable of removing injustices and is expected to do so. The High Court after noting this principle held that the same would apply in the present case for restoration of appeals which have been dismissed for noncompliance. It noted that it is not possible to regard the order of dismissal and the ground that the penalty amount was not deposited in time to be a final order. It also held that therefore, it is not possible to accept the view that restoring of such an appeal which would amount to reviewing the earlier order of dismissal. The whole fallacy lies in the approach that if such an appeal was to be restored, it would amount to reviewing its earlier final order. The High Court disagreed with the observations of the Tribunal to the effect that it cannot restore the appeals and in that context, stated that the High Court is unable to agree with the said view because such orders passed in cases where the amount of penalty has not been paid are not final orders. It observed such a construction would lead to injustice and would not further the ends of justice. It observed what would happen in a given case where an appeal was dismissed for non-production of proof of deposit of penalty and it turned out in an application for restoration of such an appeal that the amount had already been deposited within the time granted but for some reason the same could not be reported or brought to the notice of the Tribunal-before the appeal came to be dismissed on the ground of non-production of proof of deposit of penality? Therefore, it observed that the view expressed by the Tribunal that restoration is not possible would be helpless situation, since they had no power to restore even such an appeal. It further observed that such a construction would obviously defeat the ends of justice because it would amount to taking too technical a view of the matter just because there is absence of a positive provision authorising the Tribunal to restore such an appeal. Therefore, the Hon’ble High Court reversed the order and held that the appeals are required to be restored on compliance being reported.
21. This view has since been followed by the Tribunal and restored the appeal on due compliance, as can be seen by a THREE MEMBER Order in the case of Khatau Makanji Spg. & Wvg. Ltd. as and in the case of Western India Enterprises Ltd. as and that of Asian Can Ltd. v. CCE as refused to grant the restoration on non-compliance as in the case of GTC Industries v. CCE as reported in 1995 (90) ELT 460 and Kanpur Pesticides & Chemicals Ltd. v. CCE as reported in 2000 (36) RLT 851 in the light of Hon’ble Apex Court judgment rendered in the case of Navin Chandra Chhotelal v. CBEC and Anr. (supra) and that of Miles India Ltd. v. ACC (supra).
22. After having examined the above two questions, the only question left is as to whether the considerable delay caused in deposit should be a reason for rejecting the restoration application?
23. On this question, it is seen that this Bench in the case of The Master Recording Co. (supra) ahead held that as there was a considerable lapse of time and if the deposit has not been made the appeal could not be restored. In the case of Fine Stamps Engg. P. Ltd. v. UOI as , wherein the High Court noted that the appellants had deposited the entire sums and on such deposit, it held that as the entire amount had been deposited, therefore, the statutory right of appeal subject to condition of pre-deposit of amount, should be treated as valuable right of the assessee. It noted that if the assessee ultimately deposited the entire amount of duty and still wants to contest the amount of duty under the law, the interest of justice requires that an opportunity of hearing should be given to him and held that the Tribunal was therefore, not justified in rejecting the application for restoration of the appeal on deposit of the entire amount of duty and for depriving the petitioner of his valuable right conferred by law. Likewise, the same High Court in the case of S.S Pharmaceuticals (P) Ltd. v. CECAT as allowed the Writ Petition and permitted the appellants to pre-deposit the amount and get their appeal heard in terms of Section 35F of the Act, as the appeal was still pending.
24. We have now come across the another order of the Tribunal in the case of Shafiq Ahmed v. CC as , wherein the Bench held that once the appeal has been dismissed, the stay order automatically worked itself out and hence the appellants could have moved for restoration of their appeals only if they had been able to produce evidence that they had deposited the entire amount imposed upon them by the adjudicating authority. It is noted that since the entire amount had not been deposited, there is no justification for restoration and dismissed the same.
25. We notice that this judgment is not keeping with the spirit of the Hon’bie Apex Court judgment rendered in the case of I.C. Garidhi Jari Corporation v. CCE as reported in 1999 (113) ELT 772(SC), wherein the Hon’bie Apex Court ordered in the interest of justice that the appeal filed by the appellants before the Tribunal be heard on merits on their pre-depositing the amounts as directed and on such deposit, the order of dismissal passed by the Tribunal would stand set aside and the appeal is required to be heard on merits. Likewise, the Hon’bie Apex Court in the case of Haryana Wool Industries v. CC as reported in 1999 (113) ELT 773 (SC) accepted the reason for non-deposit of the amounts directed by the Tribunal and ordered for restoration of the same on such deposit being made. Therefore, it follows from the rulings of both the Apex Court judgments that if sufficient cause being shown by the appellants, the appeals could be restored. As noticed in the judgment of Hon’bie Gujarat High Court in the case of Hussein Haji Harun v. UOI (supra), the Tribunal has got inherent powers to re-call the order of dismissal, if the deposits being made and after re-considering the reasons given by them including the financial hardships, if the same had been pleaded by them. We notice that the Tribunal in the case of Asian Can Ltd. as reported in 1995 (76) ELT 91, restored the appeal which had been dismissed for non-compliance, after the appellants had produced the proof of deposit in R.G. 23 A Part II. Likewise, a similar restoration was granted in the case of Eicher Tractor Ltd. v. CCE as .
26. We notice that although there is a considerable delay in depositing the full amounts by M/s. The Master Recording Company, M/s Steel Industrials Kerala Ltd., but there is no provision either under Section 35F of the Central Excise Act or under Section 129E of the Customs Act, laying down that no such restoration be done after any stipulated period. The Tribunal having been given inherent powers to examine the issue of restoration and also the reasons furnished by the appellants, therefore, as the status quo has still remained in both these matters, therefore, we accept the reasons furnished and in light of the ratio of the several judgments noted above, both these appellants having fully deposited the adjudicated amounts, therefore, the respective orders of dismisssal in their appeals for non-compliance are recalled and their appeals are restored to their original numbers.
27. As regards M/s Macnair Exports P. Ltd. case, we notice that they have not deposited the amounts and in view of the judgments already noted, their appeal cannot be restored, unless the pre-deposits are made, therefore, their restoration application is rejected.
28. In respect of Shri Feroz B. Hajiani and Shri H.R. Bhatt matters, we notice that the deposits had been made within the period of stipulated time and as they had not brought the same to the notice of the Tribunal, therefore, we allow their restoration application and restore their appeals to their original numbers.
29. As regards M/s. Star Carbides, it is noticed that they have pre-deposited the amounts in terms of the stay order. We notice that there is inordinate delay in pre-deposit of the amounts. However, the Tribunal had indicated in the order of dismissal of appeal that the party can seek restoration on pre-deposit being made and shall seek condonation of delay. The appellants have explained the financial hardships faced by them and as they have pre-deposited the amounts in compliance of the stay order, therefore, in light of the judgments noted above, the pre-deposits are accepted and the order of dismissal is recalled by allowing this restoration application and the appeal is restored to its original number.
30. As regards the case of Shri K. Arumugam, it was represented by the appellant that he is willing to pre-deposit the amount, however, the department has not issued T.R. 6 challans. The appellant may approach the department again seeking for challans and to deposit the amount as directed in the stay order and on such pre-deposit being made, he may move an application for restoration of the appeal.
31. So also M/s. Evertaut Steels Pvt. Ltd. may seek restoration on pre-deposit of the amounts being made as directed in the stay order.
32. All the applications are disposed of in the above terms.