Haridwar Iron & Ispat Rolling Mills Ltd vs Cce, Meerut-I

(Arising out of Order-in-Original No.01/Commr/MRT-I/14 dt.1.1.14 passed by the CCE, Meerut-I)

Appeal No.E/53727-53729/2014

E/Misc/50587/2015

(Arising out of Order-in-Original No.01/Commr/MRT-I/14 dt.1.1.14 passed by the CCE, Meerut-I)

Date of Hearing/Decision: 23.03.2015

Honble Mr.Rakesh Kumar, Member (Technical)

Honble Mr.S.K.Mohanty, Member (Judicial)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

Haridwar Iron & Ispat Rolling Mills Ltd. Appellant

Shahnawaz Rana

Intekhab Rana, Ex-Director

Danish Khan, Director

Haridwar Iron & Ispat Rolling Mills Ltd.

Danish Khan, Director

Shahnawaz Rana, Director

Vs.

CCE, Meerut-I Respondent

Present for the Appellant: Shri Alok Arora, Advocate

Present for the Respondent: Shri Rajan Khanna , AR

Coram: Honble Mr.Rakesh Kumar, Member (Technical)

Honble Mr.S.K.Mohanty, Member (Judicial)

FINAL ORDER NO.50947-50953/2015

PER: RAKESH KUMAR

The appellant vide stay order No.54557-54563/2014 dt.28.11.14 had been directed to pre-deposit an amount equal to 10% of the duty demand confirmed for compliance to the provisions of section 35F of Central Excise Act, 1944 within a period of twelve weeks from the date of the order, subject to which the requirement of pre-deposit of balance amount of duty demand, interest and penalty by the appellant company and the requirement of pre-deposit of penalties by the other appellants would stand waived and recovery stayed. Compliance to be reported on 09.03.2015. On 09.03.2015 when this matter was called for reporting compliance, Ms.Rinki Arora, proxy counsel for the Advocate Shri Alok Arora, pleaded that the appellant have requested for two weeks time for deposit of directed amount. Request was granted. Accordingly, this matter was directed to be listed on 23.03.2015 for reporting compliance.

2. Today when this matter was called for reporting compliance, Shri Alok Arora, learned counsel for the appellant stated that the appellant are facing financial hardship and hence they have filed an application for modification of the stay order on 09.03.2015. He also submitted that the appellant have an arguable case on merit, hence, in view of financial hardship faced by them, the stay order may be modified by waiving requirement of pre-deposit.

3. Ld.AR opposed the application for modification of stay order and pleaded that the appellant on earlier occasion, on their own request had been given sufficient time for making pre-deposit within twelve weeks and subsequently, on their request, the Tribunal further extended the period by two weeks and in the circumstances, there is no justification for modification of the stay order.

4. We have considered the submissions from both the sides and perused the records.

5. The order dated 28.11.2014 had been passed after going through prima facie merits of the case, and amount of pre-deposit ordered 10% of the duty demand confirmed against the appellant company is a modest amount. Moreover, when the matter had been called for reporting compliance on 09.03.2015, the appellant had not made any plea of financial hardship, and had requested two weeks time to make the pre-deposit. In view of these circumstances, their request for modification of stay order cannot be considered. Moreover, Honble Karnataka High Court in the case of CCE, Bangalore vs.Macdowell & Co.Ltd. reported in 2005 (186) ELT 145 (Kar.) held that once the Tribunal passed a stay order under section 35F it becomes functus-officio and it cannot modify the order. The only circumstances, in which the stay order passed under section 35F, can be modified and when there is apparent mistake from the record which is not the case here.

6. In view of this, we do not find any merit in the miscellaneous applications for modification of the stay order. The same are dismissed. Since, the appellant have not complied with the directions of the Tribunal regarding pre-deposit, the appeals are also dismissed for non-compliance of the provisions of section 35F of Central Excise Act, 1944.

(Pronounced in the open court)

(S.K.MOHANTY) (RAKESH KUMAR)

MEMBER (JUDICIAL) MEMBER(TECHNICAL)

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