- (1.) PRAKASH Krishna, J. This writ petition has been filed for quashing the order dated 2-8-2002 passed by the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi, respondent No. 1.
(2.) THE petitioner is engaged in the manufacture of goods falling under Chapters 28, 29 and 84 of the Central Excise Tariff Act, 1985. It appears that the petitioner approached the Tribunal against the order passed by the Commissioner (Appeals) Allahabad. Under Section 35-F of the Central Excise Act, the petitioner applied for grant of waiver to deposit the disputed amount of duty as a condition for hearing of the appeal. THE Tribunal by order dated 14th December, 1998 directed the petitioner to deposit rupees one lac as against the demanded duty on or before 31st January, 1999. Subject to compliance the balance amount was dispensed with and recovery proceedings were stayed during the pendency of appeal. THE petitioner failed to deposit the aforesaid amount of rupees one lac on or before 31st January, 1999. THE Tribunal by order dated 16-2-1999 dismissed the petitioner's appeal for non- compliance of the provisions of Section 35-F of the Central Excise Act. It appears that the petitioner has also filed another appeal raising the same controversy before the Tribunal. THE Tribunal allowed the said appeal, as a result the amount deposited by the petitioner in another appeal became refundable. THE department instead of refunding the said amount to the petitioner adjusted the same towards the outstanding dues, which was the subject-matter of present appeal, which was dismissed by the Tribunal by order dated 16th December, 1999. The petitioner thereafter, filed an application for restoration of the above appeal on the ground that since now the duty has been realized by the department by way of adjustment, the condition of Section 35-F stands complied with and appeal may be heard and decided on merits. The said application was filed on 17th May, 2001 and was dismissed by the Tribunal by Misc. Order No. 10/01-C. The application was dismissed on the ground that there was no material before the Tribunal to show that any amount was deposited earlier when it become refundable. Thereafter, the petitioner filed second application for restoration of the appeal annexing therewith certain documents evidencing that the duty which was the subject-matter of appeal has been refunded by the department by way of adjustment and contended that now the provisions of Section 35-F of the Act, have been complied with and requested the Tribunal to hear the appeal on merits. The Tribunal by the impugned order dismissed the second restoration application holding that this amount to review the earlier order and secondly in absence of vital documents i. e. the order showing that the amount which became refundable was adjusted towards the amount which ought to have been deposited in pursuance to the stay order dated 14-12-1998. Aggrieved against this very order present writ petition has been filed.
(3.) HEARD Sri A. P. Mathur, learned Counsel for the petitioner an Sri Anoop Kumar Srivastava, learned Standing Counsel for the Union of India. The learned Counsel for the petitioner argued that in any view of the matter the position as stand today and not even disputed in the counter-affidavit the department has recovered a sum of rupees one lac by way of adjustment, the Tribunal should hear and decide the appeal on merits. According to him condition of Section 35-F of the Act stands satisfied and there is no legal bar for rehearing of the appeal. On the other hand it was submitted by the learned Standing Counsel for Union of India that the petitioner was required to comply with the condition of stay order within certain time. Admittedly the petitioner has failed to comply with the conditions of the stay order within time granted by the Tribunal. Now the question of re-hearing of appeal does not arise. He further submitted that earlier orders have not been challenged in the present writ petition and, as such, this Court should not issue a writ.;