This writ petition is filed seeking for a direction to quash Ext. P7 demand notice and to compel the respondents to hear the appeals preferred by 1st petitioner bearing No. E/SB/ROA/463 to 466/94/MAS in E/SB/847 to 849 and E/SB/1345/89/MAS issued by the 4th respondent, giving opportunity to the petitioners. 2. The facts involved in the case would show that a demand was made for an amount of Rs. 65,89,432.67 from the 1st petitioner-Company while the same was being managed by an earlier group. An appeal was filed before the Tribunal at Chennai and as per order dated 3.7.1989, copy of which is produced as Ext. P1, stay was granted on condition of pre-deposit of Rs. 6,50,000/- on or before 16.10.1989. It is stated that pre-deposit was made as evident from Ext. P1. It was indicated in Ext. P1 that the matter is to be transferred to CEGAT, New Delhi. According to the petitioners, thereafter, there was no information and when an application was made under the Right to Information Act, Ext. P2 reply was received on 8.8.2008 stating that due to renovation work, many registers have been misplaced and the status of the appeal could not be traced. According to the petitioners, the appeal is still pending and had not been disposed of so far. Another request was made on 2.6.2012 before the Commissioner of Central Excise to know the status of the appeal. Exts. P3, P4 and P5 are the said requests and the petitioners did not receive any reply. It is further indicated that so far, the appeal has not been disposed of. However, the 5th respondent, by communication dated 4.10.2012, informed the petitioner that since the proceedings have not been disposed of within the period stipulated under Section 35C(2A) of the Central Excise Act, 1994, the stay order stands vacated. Ext. P6 is the said order. Thereupon, the Deputy Commissioner has issued an order that unless an amount of Rs. 71,42,980/- is paid within 7 days, action would be initiated for recovery of the amount. Ext. P7 is the said demand. Under these circumstances, the petitioners have approached this Court.
3. Counter affidavit is filed on behalf of respondents 3 to 6 inter alia admitting the fact that with reference to the appeal pending before CESTAT, New Delhi, it was revealed that appeal papers are not traceable. According to them, total arrears pending is Rs. 71,42,980/- and since the appeal is not disposed of within the specified time, they are entitled to recover the amount. They have also indicated that the files were not returned from New Delhi Office.
4. Having regard to these factual situation, it is an admitted fact that the appeal filed by the 1st petitioner has not been disposed of so far. It is either to be heard by the 1st respondent or the 2nd respondent, as the case may be, depending upon the present jurisdiction vested in it. Learned counsel for the petitioners brought to my notice a judgment of this Court in Kunhu Moideen v. Narayanan Adiyodi, 1987 KLJ 1245. That is a case in which this Court observed that inherent powers of the civil court under Section 151 of Code of Civil Procedure, 1908 can be invoked for re-constructing records, which has been lost or destroyed.
5. On the other hand, learned counsel for the respondents relied upon the judgment of the Supreme Court in Commissioner of Customs & C. Excise, Ahmedabad v. Kumar Cotton Mills Pvt. Ltd., 2005 (180) E.L.T. 434 (S.C) to contend that though the Tribunal has the power to extend the stay beyond the period of six months, statutory provision clearly indicates that if the appeal is not disposed of within the time specified, the stay order shall, on the expiry of that period, stand vacated in terms of the statutory provision under Section 35C(2A) of the Central Excise Act.
6. Having regard to the factual issues, the only question to be considered is as to how the records relating to he above case can be reconstructed and what further directions can be given in favour of the petitioner.
7. Apparently, reference to Ext. P1 would show that the 1st petitioner had preferred an appeal and an interim order had been passed. The appeal being a special bench appeal, there was a direction to transfer the same to CEGAT, New Delhi. Stay was also granted pending disposal of the appeal. There is no material to indicate that the appeal has been disposed of so far. Ext. P2, an answer to the query under the Right to Information Act, indicates that the Assistant Registrar of the 1st respondent Tribunal has informed that the status of the special appeal could not be traced out and efforts were taken to trace the relevant records and registers and that after the records are traced out, the status of the appeal will be intimated. Ext. P2 communication is dated 8.8.2008.
8. In the meantime, the petitioner is faced with Exts. P6 and P7. By Ext. P6, the Assistant Commissioner of Central Excise has informed that the stay is automatically vacated on account of the provisions under Section 35C(2A) and that the appeal has been registered on 24.7.1997 and has been transferred to SRB, Chennai.
9. The fact remains that so far the abovementioned appeal has not been decided by any of the authorities. As matters stand now, Ext. P2 is the last communication by which the petitioner was informed that the records are not available. Under such circumstances, it is necessary in the interest of justice that the records are re-constructed and for that purpose, the petitioners as well as respondent authorities shall make necessary arrangement for production of copies of the available records, ie. memorandum of appeal as well as connected records and the 1st respondent has to consider the matter and pass appropriate orders in accordance with law. Until such time, recovery pursuant to Ext. P7 has to be kept in abeyance.
10. In the said circumstances, this writ petition is disposed of as under:
(1) Petitioners as well as respondents 3 to 5 shall place all records relating to the appeal referred to in Exts. P1 and P2 before the 1st respondent within a period of one month from the date of receipt of copy of this judgment with notice to either parties.
(2) The 1st respondent shall re-construct the case records relating to the aforesaid appeal and shall consider and dispose of the same within a further period of 6 months.
(3) Until disposal of the appeal, recovery of amounts pursuant to Ext. P7 shall be kept in abeyance.
Sd/- A.M. Shaffique, Judge.
Tds/