Ruby Chlorates (P) Ltd. Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. the appellants were directed by final order no. 407/96 dated 29.3.96 to pre-deposit an amount of rs. 3.50 lakhs against total confirmed duty amount of rs. 9,56,225 and penalty of rs. 50,000 besides personal penalty of rs. 10,000 each on the managing director and director under section 35f of the act. the appellant did not comply with the terms of the stay order and therefore their appeals were dismissed for non-compliance of stay order no. 230/95 dated 1.11.95. the appellants had filed writ petitions before the hon'ble high court of madras against the stay order. however their petitions were not accepted by the single member bench. later they filed writ appeal in 1998. their advocate on record shri a. jayachandran intimated the appellant by his letter dated 28.1.2002 that the appeal papers could not be traced and advised them to pursue the appeal in cegat by depositing the amount of rs. 3.50 lakhs as directed in the stay order. therefore they deposited the amount and filed roa nos. e/59 to 61/2002 for restoration of the appeal. after due hearing and consideration the roas were dismissed by miscellaneous order nos. 340 to 342/2002 dated 27.9.2002 following the tribunal's ruling rendered in the case of master recording co. v. cce, chennai, 2000 (70) ecc 515 (t): 2000 (125) elt 1020. while dismissing the application it was observed in the penultimate paragraph that "appellants are given liberty to file a fresh application after depositing the entire duty and penalty amount and move an application for recall of the final order no. 407/96 dated 29.3.96 dismissing their appeals." 2. appellants have not complied with the miscellaneous order nos. 340 to 342/2002 dated 27.9.2002. however they chose to file a fresh roa nos. 127 to 129/2002 on 13.11.2002 asking for modification of the said miscellaneous order. it is stated that the tribunal's miscellaneous order requires modification as there is no deliberate delay as in the six cases covered by the decisions rendered in the case of master recording co. (supra). it is stated that the delay in deposit was caused by the pending writ appeals, that is, it is due to court's delay.3. we have heard consultant shri v.p. namasivayam and dr shri c. mani in the matter.4. ld. consultant submits that this miscellaneous application be treated as rom and the miscellaneous order be recalled as several points raised by them and the judgments cited were not considered while dismissing the application. he submits that the amounts in deposit should be accepted and delay in deposit was on account of the pending writ appeal and that the delay was not on their account but on the account of the court's delay. he submits that in the miscellaneous order there was a finding that there is no proof of filing appeal is not correct as the advocate's letter dated 28.1.2002 had mentioned writ appeal nos. 67848 and 67849 of 1998. non-listing for hearing is only due to non-traceability in the high court and not with the advocate.consultant submits that the present case is distinguishable from the facts of the master recording co. case. he submits that the appeal be restored to its original number as they have complied with the directions of the stay order, 5. dr submits that a second miscellaneous application for restoration of the appeals cannot be entertained. he further submits that in terms of the ratio of the judgment rendered in the case of master recording co. (supra) the appellants are required to predeposit the entire amount of duty and penalty as confirmed in the impugned order and satisfy the court with regard to delay in deposit. the bench had given them liberty to deposit the entire duty and penalty amounts and move an application for recall of the final order no. 407/96 dated 29.3.96. he submits that as the entire duty amount and penalty amount has not been deposited the present application cannot be accepted.6. on a careful consideration, we notice that the appellant did not comply with the terms of the stay order and hence their appeals were dismissed for non-compliance in 1996. till date the appellant have not produced any copy of the order from the high court modifying the stay order or setting aside the stay order. they had filed an application for restoration of the appeal stating that their advocate had misplaced the records pertaining to writ appeals and had advised them to predeposit the amount and contest the case. the tribunal after due consideration found that they had not deposited the entire duty amount and penalty amount but had only pre-deposited rs. 3.50 lakhs. in terms of the ratio laid down in master recording co. (supra) by this bench, the tribunal did not accept their application and rejected the same, however granting them liberty to file a fresh application after depositing the entire amounts.7. appellants have not complied with the said direction to pre-deposit the entire duty and penalty amounts but have moved a fresh restoration application stating that their grounds have not been fully considered and that the master recording co. case is distinguishable and that there is no deliberate delay as in the case of master recording co. and the delay was on account of the writ appeals not being disposed of.8. we have carefully considered the submissions and notice that the tribunal is bound to follow its own ratio as rendered in the case of master recording company (supra). the appeals cannot be restored unless the appellants have pre-deposited the entire amount of duty and penalty amounts. further a fresh roa is not acceptable when previous roas have already been rejected on the same ground. thus there is no merit in these applications and the same are rejected.

Judgment:
1. The appellants were directed by Final Order No. 407/96 dated 29.3.96 to pre-deposit an amount of Rs. 3.50 lakhs against total confirmed duty amount of Rs. 9,56,225 and penalty of Rs. 50,000 besides personal penalty of Rs. 10,000 each on the Managing Director and Director under Section 35F of the Act. The appellant did not comply with the terms of the stay order and therefore their appeals were dismissed for non-compliance of Stay Order No. 230/95 dated 1.11.95. The appellants had filed writ petitions before the Hon'ble High Court of Madras against the stay order. However their petitions were not accepted by the Single Member Bench. Later they filed writ appeal in 1998. Their advocate on record Shri A. Jayachandran intimated the appellant by his letter dated 28.1.2002 that the appeal papers could not be traced and advised them to pursue the appeal in CEGAT by depositing the amount of Rs. 3.50 lakhs as directed in the Stay Order. Therefore they deposited the amount and filed ROA Nos. E/59 to 61/2002 for restoration of the appeal. After due hearing and consideration the ROAs were dismissed by Miscellaneous Order Nos. 340 to 342/2002 dated 27.9.2002 following the Tribunal's ruling rendered in the case of Master Recording Co. v. CCE, Chennai, 2000 (70) ECC 515 (T): 2000 (125) ELT 1020. While dismissing the application it was observed in the penultimate paragraph that "appellants are given liberty to file a fresh application after depositing the entire duty and penalty amount and move an application for recall of the Final Order No. 407/96 dated 29.3.96 dismissing their appeals." 2. Appellants have not complied with the Miscellaneous Order Nos. 340 to 342/2002 dated 27.9.2002. However they chose to file a fresh ROA Nos. 127 to 129/2002 on 13.11.2002 asking for modification of the said miscellaneous order. It is stated that the Tribunal's miscellaneous order requires modification as there is no deliberate delay as in the six cases covered by the decisions rendered in the case of Master Recording Co. (supra). It is stated that the delay in deposit was caused by the pending writ appeals, that is, it is due to Court's delay.

3. We have heard Consultant Shri V.P. Namasivayam and DR Shri C. Mani in the matter.

4. Ld. Consultant submits that this miscellaneous application be treated as ROM and the miscellaneous order be recalled as several points raised by them and the judgments cited were not considered while dismissing the application. He submits that the amounts in deposit should be accepted and delay in deposit was on account of the pending writ appeal and that the delay was not on their account but on the account of the court's delay. He submits that in the miscellaneous order there was a finding that there is no proof of filing appeal is not correct as the advocate's letter dated 28.1.2002 had mentioned Writ Appeal Nos. 67848 and 67849 of 1998. Non-listing for hearing is only due to non-traceability in the High Court and not with the advocate.

Consultant submits that the present case is distinguishable from the facts of the Master Recording Co. case. He submits that the appeal be restored to its original number as they have complied with the directions of the stay order, 5. DR submits that a second miscellaneous application for restoration of the appeals cannot be entertained. He further submits that in terms of the ratio of the judgment rendered in the case of Master Recording Co. (supra) the appellants are required to predeposit the entire amount of duty and penalty as confirmed in the impugned order and satisfy the Court with regard to delay in deposit. The Bench had given them liberty to deposit the entire duty and penalty amounts and move an application for recall of the Final Order No. 407/96 dated 29.3.96. He submits that as the entire duty amount and penalty amount has not been deposited the present application cannot be accepted.

6. On a careful consideration, we notice that the appellant did not comply with the terms of the stay order and hence their appeals were dismissed for non-compliance in 1996. Till date the appellant have not produced any copy of the order from the High Court modifying the stay order or setting aside the stay order. They had filed an application for restoration of the appeal stating that their advocate had misplaced the records pertaining to writ appeals and had advised them to predeposit the amount and contest the case. The Tribunal after due consideration found that they had not deposited the entire duty amount and penalty amount but had only pre-deposited Rs. 3.50 lakhs. In terms of the ratio laid down in Master Recording Co. (supra) by this Bench, the Tribunal did not accept their application and rejected the same, however granting them liberty to file a fresh application after depositing the entire amounts.

7. Appellants have not complied with the said direction to pre-deposit the entire duty and penalty amounts but have moved a fresh restoration application stating that their grounds have not been fully considered and that the Master Recording Co. case is distinguishable and that there is no deliberate delay as in the case of Master Recording Co. and the delay was on account of the writ appeals not being disposed of.

8. We have carefully considered the submissions and notice that the Tribunal is bound to follow its own ratio as rendered in the case of Master Recording Company (supra). The appeals cannot be restored unless the appellants have pre-deposited the entire amount of duty and penalty amounts. Further a fresh ROA is not acceptable when previous ROAs have already been rejected on the same ground. Thus there is no merit in these applications and the same are rejected.