Dunlop India Ltd vs Commissioner Of Central Excise

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.E/41402/2013

[Arising out of Order-in-Appeal No.82/2013 (M-II) dt.20.3.2013 passed by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Chennai]

Dunlop India Ltd. Appellant

Versus

Commissioner of Central Excise, Chennai-II Respondent

Appearance:

Shri N. Viswanathan, Advocate For the Appellant

Shri R. Subramanian, AC (AR) For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 26.8.2015

FINAL ORDER No.41040/2015

Per R. Periasami

Vide MISC Order No.41628/2014 dt. 22.9.2014, the appellants were directed to predeposit Rs.7 lakhs within 8 weeks and report compliance on 24.11.2014. Subsequently, the appellant filed a modification of above predeposit order on 27.10.2014 which was taken up on the date of compliance i.e. on 24.11.2014. The modification petition was rejected by Tribunal vide MISC Order No.41997/2014 dt. 24.11.2014, however extending the period of compliance further 4 weeks and the matter was posted to 29.12.2014 for compliance. 2. The appellant filed a C.M.A. before the Hon'ble High Court of Madras against the MISC Order No. 41997/2014 dt. 24.11.2014. The Hon'ble Division Bench of the High Court by its order dt. 26.2.2015 in C.M.A.No.188 of 2015 and M.P.No.1 of 2015 dismissed the C.M.A. and upheld the Tribunal's order. However, appellants were granted time upto 31.3.2015 to make the predeposit. When the matter was listed on 20.4.2015, the learned advocate mentioned that review petition filed by the appellant against High Court's order dt. 26.2.2015 was pending before the Division Bench. Again the matter was listed on 2.6.2015 when the advocate informed that a review petition No.42/2015 was filed before High Court and sought time. Again when the matter was listed on 23.7.2015, counsel informed that review petition was dismissed and awaiting for copy of the order of Hon'ble High Court. Therefore, the matter was posted to today. Today, the counsel produces a copy of the High Court's order dt. 3.7.2015 in R.A.No.42 of 2015 wherein the Hon'ble High Court dismissed the review application. The relevant paragraphs of the High Court's order dt. 3.7.2015 is reproduced below :- "4. It is relevant to point out that the reasons to dismiss the appeal has been recorded by this Court in paragraph 11 of the judgment, which we set out hereunder:-

"11. It is seen from the order of the Tribunal that even though the assessee pleaded financial hardship before the Tribunal, the assessee did not produce any documents to prove the same. Before us also, learned counsel appearing for the appellant pleaded financial hardship but no details or documents have been furnished in support of such a plea. We find no good reason to accept such a mere statement of financial hardship as a cause to modify the order of pre-deposit. The order of the Tribunal seems to be justified in the facts and circumstances of the case. In the absence of any materials placed before this Court, we see no reason to interfere with the order passed by the Tribunal."

5. In the above paragraph, this Court has clearly held that the assessee did not produce any document to support the plea of financial hardship or that the winding up proceedings are pending before the Supreme Court. Paragraph 11 makes it very clear that we do not find any reason to entertain the plea on a mere oral statement.

6. This Review petition is now filed on the ground that subsequently some documents have been received and there is prima facie case in favour of the petitioner. ...

8. The ground now pleaded by the petitioner is that some documents have been received to substantiate the plea of undue financial hardship. Even though the same was averred in the affidavit filed in support of the civil miscellaneous appeal, no evidence was produced to that effect when the appeal was taken up for hearing. All the issues now raised were highlighted by the review petitioner and that has been recorded in paragraph 11 of the judgment passed n the appeal. There is no mistake or error apparent on the face of the record as pointed out by the review petitioner to see review of the judgment dated 26.2.2015. The order of the Supreme Court now relied upon by the review petitioner is dated 12.6.2013 and the judgment sought to be reviewed is dated 26.2.2015. therefore, it cannot be pleaded that there is a new or important matter which was discovered for filing review petition and the same could not be produced by the petitioner even after exercising due diligence. The documents available with the review petitioner were not produced despite making a oral plea. Hence, no ground is made out to review the judgment dated 26.2.2015."

In view of the Hon'ble High Court's above order, this Tribunal order merged with High Court order and the appellant failed to comply the High Court order. Since the appellants have not complied the predeposit ordered which was upheld by the Hon'ble High Court, the appeal is dismissed for non-compliance of High Court's order.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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