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TMI Blog2015 (8) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for Stay (No. ST/Stay/60592/2013) and a Misc. Application (No. ST/Stay/60593/2013). The prayer sought in the misc. application was to exempt the appellant from pre-deposit under Section 35F of the Central Excise Act, 1944 and the stay application was seeking stay of the recovery of the demand during the pendency of the appeal. 3. The application was strongly opposed by the Revenue. The learned DR contended that the appellant is attempting to have the appeal reheard which is unjustified. Further that the appellant is putting forward contentions which were never raised before. That the application itself is not maintainable. 4. The appellant had filed the appeal along with stay and misc. applications on 3-10-2013. As per published list, on 26-11-2014, the stay application and misc. application came up for hearing along with appeal in the matters posted for hearing on stay. The learned counsel for appellant submitted that as the matter was listed for hearing the stay application and not for final hearing of appeal, the appellant had not given instructions to the counsel for final disposal of the matter. It is also his case that the counsel appearing for the appellant h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first appellate authority. 5. The Tribunal while disposing the appeal heard both sides and has also perused the records as is seen noted in the order. It is evident from the order that the Tribunal has reached the conclusion not only basing upon the decision rendered in Sh. Surendra Singh Rathore & Othrs v. CCE, Jaipur, 2013 (3) ECS (224) (Tri.-Del.) = 2014 (34) S.T.R. 147 (Tri.-Del.) but also taking into consideration the facts of the case. The Tribunal in its' Final Order took special note of the fact that the appellant did not file any reply to the show cause notice. The SCN is dated 22-10-2009. The appellant appeared for personal hearing and submitted their contentions without giving any replay in writing. At this juncture, it is worthy to note a part of the order of the primary adjudication authority, the relevancy of the is discussed later. The relevant portion is reproduced as under : "The party was given three opportunities to appear for personal hearing on 1-2-2011, 8-2-2011 and 15-2-2011 vide letter C. No. IV (16) Hqrs/Adj/ Anshita/483/ST/09, dated 18-1-2011. The party vide their letter dated 7-2-2011 requesting to give alternative dates in afternoon as their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the appellant (Shri Ramesh Chawla) along with advocate had attended the personal hearing before the primary adjudicating authority no reply was filed. No written reply necessarily means absence of any defense raised at the first instance of adjudication. Thus the Tribunal had not merely relied upon the judgment covering the issue, but had also taken into consideration the facts and contentions of both sides. The Tribunal giving weight to these aspects has passed the final order. The appellant has thereafter come forward with this misc. application putting forward a new contention that the appellants were not served with SCN and also explaining reasons for not filing the written reply. Surprisingly no such contention or explanation is seen offered even in the appeal memo. Therefore, the same is only to be brushed aside as an afterthought after receiving the final order. 8. The learned counsel for appellant relied upon the decision rendered by the Hon'ble High Court in Commissioner of Central Excise v. Mahindra & Mahindra Ltd. (supra). The facts of that case are such that, the appellant there in had never agreed to the appeal being decided finally at the stage of hearing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits. We intend setting aside the orders and remanding the matter to grant the appellant the opportunity of meeting the case on merits. We do not, however, do so disbelieving what is recorded in the orders of the CESTAT dated 15-2-2013 and 21-2-2014. Assuming that the concession was made, it was made on a question of law which the party ought not to be bound by. Further there does not appear to be anything on record to indicate that the appellant had instructed the counsel to make the concession of law." 10. In the instant case, the appellant has not filed a ROM application but has filed a misc. application and that too after disposal of the appeal finally. The challenge before the Hon'ble High Court in the above judgment was order passed in a ROM application. Further the appellant had deposited the entire demand and there was no necessity to grant stay. In the present case the appellant has not deposited any amount though the period of dispute relates to 2004-2009. Further the Tribunal has not merely disposed the case observing that the case is covered by the decision. The Tribunal after considering the facts and contentions has applied the decision and finally disposing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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