Hon'ble Subhash Chandra Nigam,J.
By means of present appeal, the appellant is challenging the order dated 28.2.2006 passed by the Custom, Excise & Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as "Tribunal) by which the application of the appellant for recalling the order dated 27.5.2002 has been rejected.
It appears that against the adjudication order, the appellant filed the appeal before the Tribunal along with an application under Section 35-F of the Central Excise Act (hereinafter referred to as the "Act"). The application under Section 35-F of the Act has been allowed in part and as against the requirement to pre-deposit the demand of Rs.13,56, 390/- and the penalty of Rs.2,50,000/-, the appellant was directed to deposit Rs.5,00,000/-. It appears that the amount could not be deposited. It appears that for non-compliance of this order dated 19.3.2002 appeal was dismissed on 27.5.2002. It appears that the appeal was listed before the Tribunal and the same was allowed by the Bench on 17.2.2005. The Commissioner of Central Excise, Meerut moved an application that the order dated 17.2.2005 has been inadvertently passed in an appeal filed by the appellant inasmuch as the facts referred in the order did not relate to the appellant appeal and a prayer was made to recall the order dated 17.2.2005. The Tribunal vide order dated 21.10.2005 recalled its order dated 27.5.2002 and fixed the restoration application of the appellant for consideration which has been dismissed vide impugned order dated 28.2.2006. The Tribunal was of the view that the order dated 19.3.2002 was passed on the application under Section 35-F of the Act after hearing learned counsel for the appellant and having regard to the financial conditions. The Tribunal further observed that the stay order has not been complied with and a specific query was made from the Bench whether the appellant was willing to comply with the stay order, the answer was negative and, accordingly, the application was rejected. Against the said order, the appellant filed Writ Petition No. 1529 of 2006 which has been dismissed on 9.9.2009 on the ground that the petitioner can challenge the order passed by the Tribunal in appeal and, accordingly, the present appeal has been filed.
When the matter came up for consideration before the Bench on 19.1.2010, this Court has directed to list the matter on 3.2.2010 to enable the appellant to deposit a sum of Rs.5,00,000/- as directed by the Tribunal in its order dated 19.3.2002. Today, an application has been moved for the modification of the order dated 19.1.2010 on the ground that on 2.2.2010 when the appellant approached his counsel then he told that for the first time that the Assistant Commissioner, Custom & Central Excise, Division-I, Muzaffarnagar vide order dated 23.11.2004 had attached the entire land, building, plant and machineries and valued at Rs.55,00,000/- for recovering the Government dues i.e. Central Excise duty and penalty total amounting to Rs.16,07,081/- and in this view of the matter, the interest of the revenue is fully secured and a prayer is made to modify the order dated 19.1.2010.
We have heard Sri A.P. Mathur, learned counsel for the appellant and learned Standing Counsel.
On the facts and circumstances, we do not find any substance in the appeal. The order dated 19.3.2002 was passed on the application under Section 35-F of the Act after hearing the appellant directing the appellant to deposit a sum of Rs.5,00,000/-. The amount could not be deposited. On 27.5.2002, the Tribunal has dismissed the appeal for non-compliance of the order dated 19.3.2002. The appellant moved the restoration application on 9.12.2002 which has been dismissed on 28.2.2006 against which the present appeal has been filed. On the facts and circumstances, the Tribunal has given opportunity to deposit the amount which was not availed. This Court has also given opportunity on 19.1.2010 to deposit the amount as directed by the Tribunal on 19.3.2002 but the amount has not been deposited. Instead of depositing the amount, the application for the modification of the order dated 19.1.2010 has been filed. On the facts and circumstances, we do not see any reason to interfere with the matter. Since the appellant has not complied with the order dated 19.3.2002, the appeal has rightly been rejected on 27.5.2002 for non- compliance of the order dated 19.3.2002.
For the aforesaid reason, the appeal stands dismissed.
Order Date :- 3.2.2010 OP