ORDER
G.P. Agarwal, Member (J)
1. These are four identically worded applications purporting to be under Sub-section (2) of Section 35C of the Central Excises and Salt Act, 1944 with a prayer to amend the Final Order No. 276 to 279/93-C dated 4-8-1993 passed by this Tribunal in the appeals filed by the present appellants (A. Nos. E. 17 to 20/92-C).
2. Arguing on the application Shri P.M. Dave, Ld. Counsel for all the applicants submitted that in the instant case the demand raised was time-barred and, therefore, it was taken as a ground in the Memorandum of Appeal as well as in the stay application. At the time of hearing of the stay application this plea of the applicants was duly considered. During the hearing of the appeals on merits the said ground was reiterated but inadvertently it remained undecided in passing the said final order and consequently the propriety of imposing the penalty and its quantum also remained untouched. To substantiate his contention he has also filed his affidavit. In reply Shri Somesh Arora, Ld. JDR submitted that since the matter was argued by Shri L.N. Murthy, JDR earlier and he has been transferred, he is not in a position either to rebut or corroborate the said submission of the Ld. Counsel.
3. We have considered the submissions. From the record we find that the plea that the demand was time-barred was taken in the Memorandum of Appeal as one of the grounds. From the Stay Order No. 47 to 50/92-C, dated 25-2-1992 passed in the present case we find that the requirement to pre-deposit the duty demanded and penalty imposed in the instant case was unconditionally dispensed with inter alia taking into consideration that the charge of the suppression of facts and demanding duty is not prima facie well founded. The Advocate Shri P.M. Dave who had argued the present appeal earlier has filed his affidavit to the effect that during the hearing an argument was also advanced by him that the demand raised in this present case was hit by limitation. From the said order passed by the Tribunal it appears that this plea was not considered at all. Thus, we recall the said Final Order only to the extent to consider the plea of the appellants as to whether the demand(s) raised in the present case was time-barred or not and consequently as a sequel thereof also to consider the legality of imposition of the penalty and its quantum if need be.
4. In the result, all the applications stand disposed of accordingly. Registry is directed to list the case for hearing on the said issue only as stated above.