Ashok Pharmaceuticals vs CEGAT

A.M. Sapre, J.—By filing this writ under Article 227 of the Constitution of India, the petitioner seeks to assail the order dated 25.6.2001 (Annexure P/7) passed by Customs Excise and Gold (Control) Appellate Tribunal (CEGAT) in an appeal filed by the petitioner. The order impugned in the petitioner is short and can thus be reproduced verbatim infra:

The Tribunal dismissed the appeal on the ground of failure to comply with its order for deposit within two months of Rs. 45,000. It dismissed the application for restoration on the ground that the deposit made in 1999 would not amount to compliance with the stay order. The present application again seeks restoration of the appeal.

The only ground in the application is that the Tribunal has power to restore the appeal. The question is not whether the Tribunal has power to restore the appeal, but the manner in which that power should be exercised. There was no application, subsequent to the stay order, for modification or extension of time. It is clear that the appellant chose to deposit the amount when it find convenient to do so, 11 years after stay order. There is not the slightest attempt to explain the (sic) [delay] of more than a decade. To permit restoration in such a case would in effect amount to an admission that the orders of the Tribunal has no meaning or sanctity, can be complied with or flouted with at the option of the appellant. There is thus no question of restoring of this appeal.

Shri A.M. Mathur, learned Senior Advocate, assisted by Shri Shrivastave, L/c for the Petitioner.

Having heard the L/c for the petitioner and having perused the record of the case, I find absolutely no life in this writ and as a consequence it must be dismissed resulting in upholding of the impugned order passed by the Tribunal quoted supra.

This being a writ under Article 227 of Constitution of India, this Court has to only confine its enquiry to the order against which the petition is filed. In other words, this Court has to only examine whether the impugned order was legally right or not? This Court cannot in this writ examine any other issue.

Perusal of impugned order quoted supra would show that it was passed as on application seeking restoration of the appeal filed by the petitioner before CEGAT which was dismissed by the Tribunal on the ground of non-compliance of the mandatory direction passed by the Tribunal while deciding the stay application made by the petitioner in their appeal. By making this application the petitioner had prayed that their appeal be again restored to file for being heard on merits. This prayer was being made by contending that one deposit which they claimed to have made in the year 1999 be treated as a deposit against the mandatory directions of the Tribunal passed in their appeal as a pre-condition to hear the appeal on merits. In the opinion of Tribunal while dismissing this application and refusing to restore the appeal, the deposit made in the year 1999 cannot be adjusted against the deposit to be made persuant to their direction of deposit.

I thus do not find any merit in the petition. The observations made by the Tribunal are mostly on facts and it does not involve any issue relating to jurisdiction or interpretation of any entry of Excise Laws.

L/c for the petitioner made attempt to address the Court on merits of the controversy involved in the appeal and then contended that petitioner was not liable to pay any duty on their goods and that order imposing duty is not sustainable. It cannot entertained. As stated Supra, this writ does not arise out of the order passed on merits by the Tribunal. In other words this Court cannot examine the issue sought to be raised in the appeal which itself came to be dismissed in default of petitioner''s non-compliance of stay order. The Tribunal, therefore, was never called upon to decide the issue involved in appeal on merits. If the petitioner had complied with the direction of Tribunal by depositing the dues in time granted by the Tribunal then in such eventuality, the Tribunal would have been able to decide the appeal on merits and as a consequence this Court find that this is not a case of that nature.

I thus find no merit in the writ. It fails and is dismissed in limini.