1. This is a case in which the appellants herein are required to pay duty amounting to Rs. 5,13,930 and penalty of Rs. 50,000 in terms of the impugned order of the Principal Collector of Central Excise, New Delhi. They had filed a Stay Application alongwith the appeal. The Tribunal disposed of the stay application by his order S-173/1993, dated 28-9-1993. By that order the appellants were directed to deposit duty amount in question within three months from that date subject to which the pre-deposit of penalty of Rs. 50,000 was dispensed with. The appellants were asked to report compliance by 5-1-1994. On 5-1-1994, the appellants did not comply with the stay order but pleaded for further time. The Tribunal granted further time upto 31-1-1994. The matter came up again on 3-2-1994 for ascertaining compliance. On that day, the learned Counsel submitted a letter saying that the appellants have moved the High Court in Writ Petition against the Tribunal's Stay order that the hearing of the Petition was posted for 7-2-1994. The Tribunal accordingly adjourned the matter to 10-2-1994. It was informed on that date that the Court had further adjourned the case to 22-2-1994. The Bench then issued a notice for dismissal of the appeal for non-compliance with reference to provision of Section 35F of Central Excises and Salt Act, 1944. Presently the matter is listed for considering the reply to the show cause notice. A reply to the notice has been handed over today by the learned Counsel who submitted that the matter is again to come up before the High Court on 22-4-1994 and the Tribunal may await further development before the High Court and not dismiss the appeal. Shri M.K. Jain, the learned Senior Departmental Representative points out in this case that the stay order had been passed in September, 1993, till today there has been no compliance.
2. We have carefully considered the matter. The stay order in this case has been passed on 28-9-1993 and on the request of the appellants herein further time for compliance had also been granted. The appellants have moved the High Court and in view of that, the matter has once again been adjourned, the position before the High Court is still the same. There is no order of the High Court staying the operation of the Tribunal's order. Since the pre-condition under Section 35F of the Central Excises and Salt Act, 1944 for the hearing of the appeal is mandatory and as has been well settled by the Supreme Court, the appeal itself is governed and is conditional upon the pre-deposit being made, in such circumstances, the appellants having failed to make the pre-deposit in terms of the stay order passed by the Tribunal and also even within the extended time granted to them by the Tribunal, the appeal deserved to be dismissed under Section 35 of the Central Excises and Salt Act, 1944. We order accordingly. Order dictated in Court.