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TMI Blog2018 (4) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal had directed the Appellant to pre-deposit vide its order dated 19.08.1993. In doing so, the Tribunal failed to consider that in Kisaan Gramdyog Sansthan and Ors. vs. Commissioner of Central Excise, Kanpur, (2015) 10 SCC 629, where pre-deposit was made belatedly, the Supreme Court passed an order directing restoration of appeal and hearing of appeal on merits in accordance with law, and without reference to the period of limitation. This principle of law has also been laid down by the Madras High Court in Classic Builders (Madras) (P.) Ltd. vs. Customs, Excise & Service Tax Appellate Tribunal, (2016) 54 GST 435 (Madras) and Madhya Pradesh High Court in Avtar & Company vs. Union of India, C.E.A. No. 11/2015 decided on 30.11.2015. The Tribunal failed to appreciate that it has been held even by Gujarat High Court in Scan Computer Consultancy vs. Union of India, 2006 (204) EL T 43 (Guj.) that even if no pre-deposit was made, the appeal may not be heard, but having dismissed the appeal for non-compliance of pre-deposit does not prohibit the Appellate Authority to refuse to restore the appeal upon compliance being shown. The Tribunal also failed to consider that it has been al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y way of these notices, all the noticees, including the Appellant, were called upon to show why duty of central excise amounting to Rs. 12,34,32,231/- from SCT/GTC, Rs. 9,06,49,075/- from SFTPL/GTC and Rs. 1,82,74,850/- from* UTC/GTC should not be jointly and severally demanded under the provisions of Section 11 A of the Central Excise Act 1944. That pursuant to the Show Cause Notices, adjudication proceedings took place before the Commissioner Central Excise (Adj.), Delhi and the then Collector, Central Excise, Delhi. Order dated 10.07.1992 in Original no. 25/92 confirmed the excise duty demands amounting to Rs. 12,34,32,231/- on SCT/GTC, Rs. 9,06,49,075/- on SFTPL/GTC and Rs. 1,82,74,850/- on UTC/GTC, and imposed a penalty of Rs. 9,00,000/- on the Appellant. 4. An Appeal bearing no. 5237 of 1992 was filed by the Appellant before the Tribunal against the aforesaid Order dated 10.07.1992. The Appellant also filed a stay Application bearing No. E/STAY /2961/92-D along with the Appeal, seeking stay of the order dated 10.07.1992 and waiver of the pre-deposit of the excise duty and penalty imposed therein. The Tribunal vide its order dated 19.08.1993 disposed of the Stay Application w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osited before the Tribunal on 02.02.1995. Thereafter, the Appellant was unable to deposit the balance amount of Rs. 16 crores and moved a similar application for extension of time before the Tribunal, that directed deposit in two installments of Rs. 8 crores each, one by 29.11.1995 and another by 31.01.1996. Thereafter, the Appellant moved one more application on 08.12.1995 for extension of time, since the factories of SCT and SFTPL were closed for several months, due to threats of the Central Excise Officers to stop clearances and close the factories for nonpayment of the duty amount and the Appellant also did not have financial resources to pay the said amount of Rs. 16 crores. At last, the Appellant moved one more application, explaining all problems of financial hardship for not depositing the* amount and requested for extension of time, since the Appellant was at the verge of closure. The Tribunal vide Order dated 08.12.1995 directed deposit by two pay orders and two cheques totaling to Rs. 1 crore, failure to deposit which would result in dismissal of appeals. However, due to heavy financial burden on the Appellant itself and also burden of the joint liability of the job work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volume of the Company came down drastically and the accumulated losses continuously increased. Hence, the last installment of Rs. 2.06 crores could not be paid. Even by then, the Appellant had already deposited Rs. 21.26 crores, which was more than the entire pre-deposit amount of Rs. 18.83 crores as directed by the Tribunal. As per the order of BIFR, the Appellant, therefore, paid Rs. 21.26 crores in installments till March 2011, except the last installment. In the meanwhile, in a similar matter with regard to the appeals of the other manufacturing companies, namely Kanpur Cigarettes Pvt. Ltd. (KCL) and J&K Cigarettes Ltd. (JKC) (independent companies, manufacturing for Appellant), the Tribunal set aside the demand and allowed the appeals of these Companies and the Appellant on 21.03.2001. Against this order of the Tribunal, the excise department went in appeal till the Supreme Court, which vide order dated 31.07.2008, remanded the matter for hearing afresh with regard to the duty liability and flow back. The Tribunal after hearing the appeals of KCL, JKC and GTC bearing Appeal nos. E/5239,E/5238, E/5235-36/92-D, passed Order no. 751-754/2010 dated 27.10.2010, holding that the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 1055/Bom/94 and 1056/94 preferred by the Appellant, which were pending before the Income Tax Appellate Tribunal, were allowed vide Order dated 07.03.2017, holding that there was no flow back to the Appellant. As soon as the Order no. 751-754/2010 dated 27.10.2010 was passed by the Tribunal, the management of the Appellant directed the concerned person to file the application for restoration of appeal, in the present case, who informed that after consulting the counsel, restoration application had been filed. However, thereafter the concerned person retired and left the Appellant. When the restoration application filed by Appellant was not listed on board before the Tribunal for hearing for a long period, the Appellant made an enquiry from the Registry of the Tribunal and learnt that no such application was on its record and consequently, the applications were not listed for hearing. The Appellant searched for the relevant files in its office, wherein the inter office memo informing the filing of the restoration application was found, but the restoration application was not found. It transpired that the concerned person had not taken any confirmed action in the matter and probabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pre-deposit, but they failed to deposit even after a lapse of three years from the date of passing the pre-deposit order dated 19.1.1993. 9. The list of dates and events filed by the appellant itself demonstrate sheer negligence and lack of bona fide, and is as under:- A DATE Description Remarks 1. 10.07.1992 Order passed by the Commissioner confirming demand of duty of around Rs. 23 crores besides imposing penalty. 2. 19.1.1993 Stay Order passed Tribunal Directed pre deposit of Rs. 18.83 Crores 3. 7.2.1996 Appeal dismissal Order passed by the Tribunal. 4. 3.4.1997 BIFR Order declaring appellant sick Company. 5. 16.12.2002 BIFR Order sanctioning Scheme Excise duty liability in question was taken into account. 6. 18.7.2005 Central Excise Department challenged BIFR Scheme before the AAIFR which was dismissed 7. 1995 to 2011 Appellant deposited an amount of Rs. 21.26 crores 8. 27.10.2010 Tribunal in identical case involving appellant and other job worker manufacturers held that duty liability is only to be confirmed against the manufacturer job worker and appellant cannot be made liable to duty. 9. Dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal primarily on the pretext that disputed tax had been paid. This delay of 22 years cannot be condoned on vague assertions and general statements that law of condonation of delay is liberal and justice would prevail if the appeals are heard on merits for payments have been made. Such pleas are specious and deserve rejection. 14. As noticed above, show cause notice for clandestine manufacture/sale etc. was issued on 25th March, 1988. The Order in Original was passed on 10th July, 1992. Recoveries obviously had to be made, especially once the Order in Original had become final. Mere recoveries or even payment after years cannot result in restoration of the appeals or justify condonation of delay in moving the restoration application. 15. Appellant states that, pursuant to the orders passed in October, 2010 in cases of independent companies, in December, 2010, Vice-President (Law) was asked to file restoration application in the appeals before the Tribunal. The plea is not substantiated. It is accepted that no restoration application was filed. Contention that the appellant company was not aware of default by the Vice-President (Law) and had assumed that the restoration a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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