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TMI Blog2011 (11) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... Certain material facts could not be brought out by Junior of the learned Advocate which were most relevant to consider waiver of pre-deposit of the demand during pendency of appeal. (ii) Neither Shri Nankani nor his associate Shri Gulati, learned Counsels could be present for hearing on 7-9-2011 for the reasons beyond their control for which the appellant has suffered although it has a prima facie case. (iii) Shri Gulati, learned Counsel could not appear on 7-9-2011 being held up in the Hon'ble High Court of Delhi due to bomb blast occurred in the campus of Hon'ble High Court for which the Junior Counsel argued the matter. Shri Ronny John learned counsel could not have proper instructions from the client who are based in Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an interim modality considering prima facie case of the appellant. Once Tribunal passed an order whether interim or final it cannot substitute the same by a new order and becomes functus officio. 4. Heard both sides and perused the record. 5. We would have no difficulty to grant an adjournment had the reason of prevention of Shri Gulati learned Counsel as has been stated in the Misc. application passed today been brought to our notice on 7-9-2011. No medical evidence was also placed before us to appreciate the difficulty of Shri Nankani who is averred to be in Mumbai. In absence of cogent reason brought before the Bench to consider prayer for adjournment, adjournment was not possible to be granted looking to the age of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso no two cases are equal. So also every Court has its own discretion to pass interim order depending on the facts and circumstances of the case in hand. We say so following the ratio laid down by Apex Court in the case of Empire Industries - 1985 (20) E.L.T. 179 (S.C.). 9. We are of the firm belief that if we exercise power under Rule 41 of CESTAT (Procedure) Rules, 1982 it would amount to sitting over on our own judgment when the Tribunal becomes functus officio after passing an order and has no power of review. Therefore, painfully we can say that Misc. application deserves to be rejected. We order accordingly. 10. Shri Nankani, learned Counsel submits that date of deposit of directed amount as per Para 8 of the order has ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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