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M/s Rajkamal Printery, M/s Madhuri Print Versus Commissioner of Central Excise And Service Tax, Rajkot

2015 (9) TMI 1078 - CESTAT AHMEDABAD

Restoration of appeal - Non compliance of pre deposit order - Held that:- after the dismissal of the appeals by order dated 06.06.2007, the right would accrue upon the Department to recover the sums due to the Government. In the present case, the Revenue enforced the recovery of dues by attachment of the property in terms of powers conferred upon them under Section 142 of the Customs Act, 1962. In effect, the Revenue had executed recovery proceeding after dismissal of appeal before the Tribunal. .....

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- Restoration denied. - Application Nos. E/ROA/16178,16179/2014, Appeal Nos. E/1161,1162,/2005 - Order No. M/11034-11035/2015 - Dated:- 11-6-2015 - P K Das, Member (J) And P M Saleem, Member (T), JJ. For the Appellants : Shri Devan Parikh, Senior Adv. & H Shah, Adv For the Respondent : Shri Jitesh Nagori, AR ORDER Per Mr. P K Das The applicants filed these applications for restorations of appeals dismissed by Order No. A/1320-1321/WZB/AHD/2007 dated 06.06.2007 for non-compliance of the Stay .....

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nge of situation in so far as the entire amount of pre-deposit as directed in stay order was paid by them and the appeal may be restored in the interest of justice. The learned Senior Advocate submits that Department attached their property in August 2011. The applicant filed application before the Respondent for selling of property for the purpose of compliance of stay order. The matter went up to the Hon'ble Gujarat High Court. By judgment dated 12.6.2014 in Special Civil Application No. 2 .....

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llant complied the stay order and therefore, appeals should be restored in its original numbers. It is submitted that the delay in compliance of the stay order is due to acute financial crisis of the appellant, attachment of the property and auction by the department. There is no negligence and/ or inaction on the part of the applicants for compliance of the stay order. It is submitted that unless the appeals are not restored, the appellants would be deprived of right to appeal as provided under .....

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ed the orders passed by the Tribunal in earlier occasion before the Hon'ble Gujarat High Court which was dismissed. The applicants further challenged the order of the Hon'ble High Court before the Hon'ble Supreme Court and the application was dismissed as withdrawn. It is submitted that earlier order of the Tribunal already merged with the order of High Court, so, the Tribunal has no power to restore the appeals. He also submits that there is long delay of about seven years in filing .....

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nd penalty imposed upon M/s. Rajkamal Printery and M/s. Madhuri Print respectively. By stay order dated 12.3.2007, the applicants were directed to pre-deposit ₹ 50 Lacs each for hearing the appeals. By Order No. A/1320-1321/WZB/AHD/2007 dated 06.06.2007, the Tribunal dismissed the appeals for non-compliance of the stay order. The applicants filed application. No. E/ROA/1811-1812/2011 for restoration of the appeals dismissed for non-compliance of the stay order on the ground that applicants .....

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the appeal filed by the appellants. Thereafter, the applicants filed Special Leave Petition before the Hon'ble Supreme Court against the Order dated 23.08.2012 of the Hon'ble Gujarat High Court. By judgment dated 14.12.2012 in SLP (Civil) No. 34768/2012 the petition was dismissed as withdrawn. The applicants again filed applications before the Tribunal for restoration of the appeals, dismissed by Final Order dated 06.06.2007. It is contended before the Tribunal that the appellant's .....

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to immediately sell the attached property and set-aside the order dated 19.12.2013 passed by the Tribunal. By judgment dated 12.06.2014, in Civil Application No. 2015 of 2014, the Hon'ble High Court dismissed the petition as withdrawn with observations that the concerned Respondent were directed to auction the properties attached at the earliest but not later then three months from the date of order. The learned Senior Advocate contended that after the order of the Hon'ble High Court, th .....

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d view, after the dismissal of the appeals by order dated 06.06.2007, the right would accrue upon the Department to recover the sums due to the Government. In the present case, the Revenue enforced the recovery of dues by attachment of the property in terms of powers conferred upon them under Section 142 of the Customs Act, 1962. In effect, the Revenue had executed recovery proceeding after dismissal of appeal before the Tribunal. In such a situation, the Tribunal has no powers to recall the ord .....

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his matter is that the Tribunal, on earlier occasion dismissed the application for restoration of appeal by order dated 18.01.2012. The applicants challenged the said order before the Hon'ble Gujarat High Court. By judgment dated 23.08.2012, the Hon'ble High Court dismissed the petition filed by the applicants. Hence, the order dated 18.01.2012 of this Tribunal got merged with the judgment of the Hon'ble Gujarat High Court. The Hon'ble High Court observed that there was gross neg .....

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ch they had filed to challenge the orders in question. The competent authority of the Excise Department attached the properly on 23.08.2011. Only thereafter the petitioners again woke up from their slumber and filed restoration application. No explanation has been coming forth in respect of four years period from 2007 to 2011. The first segment was free 2007 when the original appeals were dismissed for non-compliance of pre-deposit order till July 2008 when the statutory. Tax Appeal before this .....

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sed in August 2011. The averments in the restoration applications did not spell out any explanation for inaction except that the petitioners had no financial means. The change of circumstances raised as ground on behalf of the petitioners does not convince us inasmuch as the circumstances were petitioners' own creation. The events narrated above further depicted that the petitioners approached the forums/court of law at their convenient time. In the facts and circumstances, the conduct of th .....

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