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TMI Blog1989 (3) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication No. E.1067/1988-C for dispensation of the mandatory requirement of the pre-deposit of the amount of duty (i.e. to say Rs. 38,87,715.87) demanded and penalty levied (Rs. 20 lakhs) upon them by the Collector of Central Excise & Customs, Pune in terms of Section 35-F of the Central Excises and Salt Act, 1944. After hearing the parties this Tribunal vide its Stay Order No. 102/1988-C dated 25-8-1988 directed the applicants to deposit an amount of Rs. 13 lakhs with the Collector and also to furnish a Bank Guarantee for the balance amount of the duty within 3 months from the date of the order. It was further directed that on compliance of these conditions within the given time the deposit of the penalty amount shall stand waived and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Writ Petition is rejected. Time is hereby extended till 28th February 1989 to comply with the impugned conditional order dated 25-8-88. This order be punctually observed and carried into execution by all concerned." 5. That the applicants undaunted with the consequences of the non-compliance of the conditional stay order dated 25-8-1988 as modified by the Hon'ble Bombay High Court by its order dated 24-11-1988 and instead of complying with the stay order have moved the present Miscellaneous Application for modification of the said conditional order. This application was received in the Registry "By hand" on 2lst February, 1989. The applicants have also filed a copy of their said Writ Petition No. 5471 of 1988 alongwith its enclosures, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pear that the financial position of the applicant company is not sound and that the applicants tried to obtain loan from the three Banks but of no avail. In reply Shri A.S. Sunder Rajan submitted that all these aspects were duly considered earlier while passing the conditional stay order dated 25-8-1988 by the Tribunal. 9. We have considered the submission. On the point of maintainability we are of the view that the present application for modification is not maintainable keeping in view the peculier facts and circumstances of the instant case. It is true that the stay order being in the nature of interlocutory order may be modified if it can be shown that new grounds have subsequently emerged. But the instant case is not a case where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On this count also we do not think that we have any jurisdiction to modify the order dated 25-8-1988 as modified by the Court on 24-11-1988. 10. Even assuming with the learned counsel for the applicants that the present application is maintainable we find no reason to modify, the said stay order. The contention of Shri S.K. Mehta, Advocate that the applicants have a good prima facie case and therefore, the requirement of the pre-deposit of the entire amount of duty and penalty be waived is nothing but a repetition of the arguments which were made earlier while passing the stay order dated 25-8-1988. From a copy of the Writ Petition filed before the Hon'ble Bombay High Court we find that the ground that the applicants have a good prima fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944 which is in pari-materia to Section 129E of the Customs Act, 1962 in view of the law laid down by the Apex Court in the case of Navin Chandra v. Excise & Customs, Central Board, Delhi 1981 (8) E.L.T. 679 (S.C.) - AIR 1971 SC 2280. However, before doing so we think it expedient in the interest of justice that a notice be given to the applicants to show cause as to why their appeal be not dismissed for non-compliance of the stay order passed by the Tribunal, as modified by the Hon'ble Bombay High Court, before we dismiss the appeal. We order accordingly. 13. Shri S.K. Mehta, learned counsel for the applicants who has argued the case takes the said notice. 14. Case to come up for hearing on 7-4-1989. No notice as the parties take t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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