M. Veeraiyan, Member (T)

1. Heard both sides on the application for restoration of appeal.

2. The relevant facts, in brief, are as follows:

(a) The original authority vide his order dated 28-6-2004 confirmed a duty demand of Rs. 25,19,401.17 on illicitly cleared processed/dyed fabrics.

(b) Commissioner (Appeals) vide his order dated 31-12-2004 upheld the order of the original authority.

(c) The applicant filed appeal before the Tribunal and also filed stay petition for staying recovery of the dues as per the orders of the lower authorities.

(d) The Tribunal vide its order dated 27-4-2005 disposed of the stay petition directing the applicant to deposit a sum of Rs. 6 lakhs within eight weeks and report compliance on 11-7-2005.

(d) The applicant filed a modification petition which was rejected vide order dated 15-9-2005 by the Tribunal holding that there was no merit in the modification application but at the same time, in the interest of justice, extended time for making pre-deposit up to 15-10-2005 and to report compliance on 17-10-2005.

(e) The applicant did not comply with the order of pre-deposit by the Tribunal in spite of granting extension of time and consequently, their appeal was dismissed vide Tribunals order No. A/1468/WZB/2005/C-II/EB dated 25-10-2005.

3. After about an year, the applicant has deposited Rs. 6 lakhs on 13-10-2006 and seeks restoration of the appeal.

4. Learned Advocate for the applicant relies on the following judgments to seek restoration of the appeal:

(a) Venus Electronics and Control Pvt. Ltd. v. CC, Kandla reported in 2006 (198) E.L.T. 547 (Tri-Mumbai)

(b) Gowtami Textile Industries and Sales Corporation v. C.C.E, Visakhapatnam reported in 2005 (192) E.L.T. 43 (Kar.)

(c) Flowel Asbestos Products v. UOI reported in : 2005 (187) E.L.T. 21 (Guj.)

(d) Nakoda Steel Mills (P) Ltd. v. C.C.E., Jaipur reported in : 2002 (150) E.L.T. 428 (Tri-Del.)

(e) Sanjay Maheshwari v. C.C., New Delhi reported in : 2002 (147) E.L.T. 791 (Tri-Del.)

(f) Puneet Steel Alloys (P) Limited v. C.C.E., Jaipur reported in : 2001 (129) E.L.T. 481 (Tri-Del.); and

(g) Master Recording Co. v. C.C.E., Chennai/Cochin reported in 2000 (125) E.L.T. 1020 (Tribunal).

5. We have given careful consideration to the submissions made by both sides. Section 35F envisages pre-deposit of duty and penalty before any aggrieved person files an appeal. However, the Tribunal after considering the various aspects urged in the stay petition and submissions made at the time of hearing ordered vide order dated 27-4-2005 pre-deposit of Rs. 6 lakhs only within eight weeks. Though the petition for modification was not accepted, in the interest of justice, further time was given for complying with the order, and still the applicant has not complied with the order. The applicant has chosen to deposit much belatedly i.e. nearly after one year and this conduct goes to show lack of respect to and lack of willingness to obey the orders of the Tribunal. If the prayer for restoration is routinely accepted it can lead to very many similar applications in future. This could lead to avoidable delay in the resolution of dispute. Therefore, this type of delay tactics should be curbed.

6. In the interest of justice, while we would like to restore the appeal we would like to put the applicant to some further terms of deposit. Appeal is restored to its original number and we order that applicant shall further make deposit of Rs. 2 lakhs (rupees two lakhs) within eight weeks from today and report compliance on 3-7-2007.

(Pronounced in open court on 27-4-2007)