Tamil Nadu News Printers and Papers Ltd. Vs. Collr. of Cus. and C. Ex. - Court Judgment

Excerpt:
- - failure to pre-deposit the said amount may entail the dismissal of the appeal without any further notice.order1. this writ petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof the order of the high court, dated 9-1-1991 and made herein and the counter and reply affidavits filed herein and the records relating to the order in misc. order in misc. order no. m-285-90-d (a.no. e/2464/86-d dated 6-12-1990 on the file of 2nd respondent comprised in the return of respondents to the writ made by the high court and upon hearing the arguments of mr. c. natarajan, advocate for the petitioner, and mr. t. srinivasamurthy, addl. central government standing counsel on behalf of the respondents the court made the following order :- an application under section 35f of the central excises and salt act was disposed of by the customs, excise and gold (control) appellate tribunal, south regional bench at madras on 20-2-1986. the petitioner company was directed to deposit a sum of rs. 15 lakhs on or before 31-3-1986 as against a total demand of rs. 22 lakhs which was the subject matter of the appeal before the tribunal. it is not in dispute that the said sum of rs. 15 lakhs has already been deposited in time. the petitioner has two other connected matters wherein it is stated that it has got absolute stay. the present appeal namely e/18/86/mas was posted for hearing on 3-12-1990. on that day, a counsel from madras went to delhi and sought for an adjournment of the case to the 5th december or 6th december to be taken with other two connected appeals. against on 5th december, adjournment was sought for on the ground that the connected appeals had not been posted and therefore the appeal should be posted along with the connected appeals on the 7th or 8th january, 1991 or any subsequent date with which we are not concerned. the impugned order was passed on 6-12-1990 on the said application for adjournment. i would do to quote the entire operative portion of the order which is self-explanatory. 'in the view of what has been stated above by the learned jdr, we do not find any justification for such request. from the record, it is clear that, the appellants were asked to deposit only rs. 15 lakhs out of total demand of rs. 22.6 lakhs meaning thereby, they are retaining the balance amount of duty demanded and utilising it. under these circumstances, we accede to the requisite for adjournment on the condition that the appellants shall deposit the balance amount of duty, that is to say, rs. 7.6 lakhs within one month from today and report the compliance to the registry. failure to pre-deposit the said amount may entail the dismissal of the appeal without any further notice.' in other words, what the tribunal has now done is that merely because an adjournment was sought for, it has purported to modify the earlier order dated 20-2-1986 and has directed the petitioner to pay the balance of rs. 7.6 lakhs as a condition for the grant of an adjournment. learned counsel for the petitioner mr. c. natarajan rightly argues that section 35f of the act does not invest the tribunal with such a power. mr. srinivasamurthy, learned counsel for the revenue argues that the power to grant includes the power to recall. even so, the power to recall can be exercised only within the four corners of section 35f of the act. the fact that a party has asked for an adjournment is certainly not a ground for recalling the earlier order and modifying the same to the complete prejudice of the petitioner. after all the petitioner has only asked for an adjournment so that the connected appeals could also be heard together. here again, in the connected appeals the petitioner has got absolute stay and therefore the petitioner does not gain anything by having the present appeal posted along with the other appeals and have them disposed of together at an early date. for the sake of asking for an adjournment of the above nature, certainly the tribunal was not justified in recalling the earlier order under section 35f of the act and directing the petitioner to pay the entire balance. it appears that the order of the tribunal has been passed in haste and probably on account of the irritation caused by the repeated requests for adjournment. even so, the tribunal being vested with very important powers, should act judiciously and impose a restraint on itself before passing orders. 2. for all the above reasons, the impugned order is set aside. it is for the tribunal to decide whether the appeals should be heard together. i have no doubt that if the points involved are the same, the tribunal may not have any objection to have all the cases heard together. 3. the writ petition is allowed in the above terms. there will be no order as to costs.

Judgment:
ORDER

1. This Writ petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof the Order of the High Court, dated 9-1-1991 and made herein and the Counter and Reply affidavits filed herein and the records relating to the Order in Misc. Order in Misc. Order No. M-285-90-D (A.No. E/2464/86-D dated 6-12-1990 on the file of 2nd respondent comprised in the return of respondents to the Writ made by the High Court and upon hearing the arguments of Mr. C. Natarajan, Advocate for the petitioner, and Mr. T. Srinivasamurthy, Addl. Central Government Standing Counsel on behalf of the respondents the Court made the following Order :-

An application under Section 35F of the Central Excises and Salt Act was disposed of by the Customs, Excise and Gold (Control) Appellate Tribunal, South Regional Bench at Madras on 20-2-1986. The Petitioner Company was directed to deposit a sum of Rs. 15 lakhs on or before 31-3-1986 as against a total demand of Rs. 22 lakhs which was the subject matter of the appeal before the Tribunal. It is not in dispute that the said sum of Rs. 15 lakhs has already been deposited in time. The petitioner has two other connected matters wherein it is stated that it has got absolute stay. The present appeal namely E/18/86/MAS was posted for hearing on 3-12-1990. On that day, a counsel from Madras went to Delhi and sought for an adjournment of the case to the 5th December or 6th December to be taken with other two connected appeals. Against on 5th December, adjournment was sought for on the ground that the connected appeals had not been posted and therefore the appeal should be posted along with the connected appeals on the 7th or 8th January, 1991 or any subsequent date with which we are not concerned. The impugned order was passed on 6-12-1990 on the said application for adjournment. I would do to quote the entire operative portion of the order which is self-explanatory.

'In the view of what has been stated above by the learned JDR, we do not find any justification for such request. From the record, it is clear that, the appellants were asked to deposit only Rs. 15 lakhs out of total demand of Rs. 22.6 lakhs meaning thereby, they are retaining the balance amount of duty demanded and utilising it. Under these circumstances, we accede to the requisite for adjournment on the condition that the appellants shall deposit the balance amount of duty, that is to say, Rs. 7.6 lakhs within one month from today and report the compliance to the Registry. Failure to pre-deposit the said amount may entail the dismissal of the appeal without any further notice.'

In other words, what the Tribunal has now done is that merely because an adjournment was sought for, it has purported to modify the earlier order dated 20-2-1986 and has directed the petitioner to pay the balance of Rs. 7.6 lakhs as a condition for the grant of an adjournment. Learned Counsel for the petitioner Mr. C. Natarajan rightly argues that Section 35F of the Act does not invest the Tribunal with such a power. Mr. Srinivasamurthy, learned Counsel for the Revenue argues that the power to grant includes the power to recall. Even so, the power to recall can be exercised only within the four corners of Section 35F of the Act. The fact that a party has asked for an adjournment is certainly not a ground for recalling the earlier order and modifying the same to the complete prejudice of the petitioner. After all the petitioner has only asked for an adjournment so that the connected appeals could also be heard together. Here again, in the connected appeals the petitioner has got absolute stay and therefore the petitioner does not gain anything by having the present appeal posted along with the other appeals and have them disposed of together at an early date. For the sake of asking for an adjournment of the above nature, certainly the Tribunal was not justified in recalling the earlier order under Section 35F of the Act and directing the petitioner to pay the entire balance. It appears that the order of the Tribunal has been passed in haste and probably on account of the irritation caused by the repeated requests for adjournment. Even so, the Tribunal being vested with very important powers, should act judiciously and impose a restraint on itself before passing orders.

2. For all the above reasons, the impugned order is set aside. It is for the Tribunal to decide whether the appeals should be heard together. I have no doubt that if the points involved are the same, the Tribunal may not have any objection to have all the cases heard together.

3. The writ petition is allowed in the above terms. There will be no order as to costs.