1. By its letter dated 8.2.1999 Shiv Herbal Research Lab P. Ltd. requested withdrawal of the appeal field by it in this Tribunal. It said "we have to inform you that in the matter covered by the order under challenge, we have filed a declaration under Kar-Vivad Samadhan Scheme. Hence the appeal may be treated as withdrawn." The Tribunal noted this requested and permitted withdrawal of the appeal. The application now filed is for restoration of the appeal on the ground that an order under section 90(4) of the Finance Act, 1998 for full and final settlement under the Kar Vivad Samadhan Scheme has not been passed.
2. The contention of the counsel of the applicant is that sub-section (4) of section 90 of the Finance Act comes into play only when a certificate acknowledging the full and final settlement of the dues referred to in sub-section (2) is issued. he relies this proposition upon the decision of the Chennai Bench of the Tribunal in Suvarna Cements Ltd. vs. CCE 2000 (38) RLT 1009. The relevant portion of the Tribunal's order is reproduced below:- "6. On a careful consideration of these submissions as well as the detailed reading of Section 90 ibid, we are of the considered opinion that under the KVS Scheme, a declaration by the applicant is to be mae to the designated authority in the prescribed form under Section 88 of the act. After verification thereof, the designated authority is required by Section on 90(1) to grant a certificate setting for the particulars of tax arrears and the sum payable towards full and final settlement of the said arrears under the Scheme. Thereafter, time limit is provided for the declarant to pay these sums and furnish proof. On this being complied with Section 90(2) requires the designated authority to issue certificate in form 3 to the effect that full and final settlement of these tax arrears under this Scheme have been effected. Section 90(4) provides that when such certificate has been passed under Sub-section (2) ibid, then alone and with effect from the date of passing that certificate or order, an appeal pending shall be deemed to have been withdrawn.
In this case, it is not disputed that the stage as envisaged under Section 90(2) had ever been reached. Since sub-section 4 of the said Section will come into play only if such stage has been reached, and since such stage had not been reached since no certificate had been issued in form 3 as full payment had not been made by the declarant, therefore, it is our considered view that the appeal does not cease to exist but would continue before the Commissioner (Appeals)." 3. It will be noted that sub-section (20 refers to an order by the designated authority and issue of certificate by it. That order is made for determining the amount payable by the declarant in accordance with this Scheme. The certificate is issued after payment of that amount.
Sub-section (4) of section 90 provides that an appeal shall be deemed to have been withdrawn on the date on which "the order referred to in sub-section (2) is passed". That order, clearly, is the order requiring the declarant to pay the amount in question. With great respect it appears to us that the words contained in sub-sections (2) and (4) of section 90 of the Finance Act do no support the interpretation placed by the Chennai Bench of the Tribunal. On the contrary they clearly say what we have considered thus to say.
4. Apart from this thee is another fact to be considered whether irrespective of which interpretation is correct, it is not in doubt that after a final order certificate under sub-section 92) of section 90 had not been issued to the appellant before us. The appeal would be deemed to have been field only upon issue of that certificate. In such a situation even a formal request for withdrawal would not be acceptable. Therefore, assuming the interpretation given by the bench to be correct, it would follows that withdrawal sought by the appellant is not in pursuance of the KVSS. There is no question of appeal being restored.