Madras High Court
M/S.Kali Aerated Water Works vs The Customs Excise And Service Tax on 9 November, 2022
CMA(MD)Nos.807 to 809 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.11.2022
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
C.M.A.(MD)Nos.807 to 809 of 2015
M/s.Kali Aerated Water Works
Represented by its Proprietor
K.P.D.Rajendran
127-Trivandrum Road,
Tirunelveli-627 002 ... Appellant/Appellant in
all C.M.As
Vs.
1.The Customs Excise and Service Tax,
Appellate Tribunal
South Zonal Bench,
26-Haddows Road,
Chennai-600 006.
2.The Commissioner of Central Excise
NGO 'A' Colony,
Tirunelveli-627 007. ... Respondents/Respondents
in all C.M.As
PRAYER in C.M.A(MD)No.807 of 2015: Civil Miscellaneous Appeal
filed under Section 35G of the Central Excise Act, 1944, against the
miscellaneous order No.42168/2014 dated 28.11.2014 in
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CMA(MD)Nos.807 to 809 of 2015
No.R/ROA/42243/2014 in Appeal No.E/347/2006-DB passed by the learned
First Respondent Customs, Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Chennai-600 006.
PRAYER in C.M.A(MD)No.808 of 2015: Civil Miscellaneous Appeal
filed under Section 35G of the Central Excise Act, 1944, against the
miscellaneous order No.42169/2014 dated 28.11.2014 in
No.E/ROA/42242/2014 in Appeal No.E/328/2006-DB passed by the learned
First Respondent Customs, Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Chennai-600 006.
PRAYER in C.M.A(MD)No.809 of 2015: Civil Miscellaneous Appeal
filed under Section 35G of the Central Excise Act, 1944, against the
miscellaneous order No.42167/2014 dated 28.11.2014 in
No.E/ROA/42244/2014 in Appeal No.E/348/2006-DB passed by the learned
First Respondent Customs, Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Chennai-600 006.
For Appellant : Mr.M.Kumar, assisted by
in all C.M.As Mr.S.Renganathan
For Respondents :M/s.N.Dilipkumar, Standing Counsel
in all C.M.As assisted by Mr.K.Prabhu
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CMA(MD)Nos.807 to 809 of 2015
COMMON JUDGMENT
(Judgment of the Court was delivered by N. ANAND VENKATESH,J.)
M.S.RAMESH,J.
AND
N. ANAND VENKATESH,J.
The issue involved in all these appeals pertains to the challenge made
to the orders passed by the Customs, Excise and Service Tax Appellate
Tribunal(CESTAT) dismissing the applications filed by the appellant to
restore the appeals, which were dismissed through the final order dated
09.08.2007 for non-compliance of the predeposit of duty within the period
stipulated by the Tribunal.
2.The appellant filed appeals before the CESTAT challenging the
order passed by the Commissioner of Central Excise (Appeals) Madurai.
While filing these appeals, applications were filed seeking for dispensing
with pre-deposit of the duty amount. These applications were taken up by
the Tribunal and an order was passed on 03.05.2007 to the effect that the
appellant has to make predeposit of the duty amounts of Rs.2,64,026/-,
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CMA(MD)Nos.807 to 809 of 2015
Rs.2,24,766/- and Rs.2,03,616/- respectively, within a period of eight weeks
and report compliance on 10.07.2007.
3.The above amounts that were fixed by the Tribunal were not
deposited and consequently, a final order came to be passed on 09.08.2007
dismissing the appeals.
4.After 7 years, applications came to be filed in all the appeals
seeking for restoring the appeals, which were dismissed on 09.08.2007 on
the ground that the non-compliance of the condition imposed by the
Tribunal was not intentional and that the amounts have subsequently been
deposited.
5.The Tribunal, on considering the contentions raised on both sides,
came to a conclusion that there is absolutely no merit in the applications
filed and accordingly, the applications filed for the restoration of the appeals
came to be dismissed. Aggrieved by the same, these Civil Miscellaneous
Appeals have been filed under Section 35G of the Central Excise Act, 1944.
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CMA(MD)Nos.807 to 809 of 2015
6.Heard Mr.M.Kumar, learned counsel appearing for the appellant
and Mr.N.Dilipkumar, learned Standing Counsel appearing for the
respondents.
7.The learned counsel for the appellants mainly raised the ground that
the judgment of the Hon'ble Apex Court in the case of Kali Aerated Water
Works-vs-Commissioner of C.Ex., Madurai, reported in 2015(320)E.L.T.
692(S.C), has come in favour of the appellant and the appellant is entitled
for exemption, since they are held to be a small scale industry. In view of
the same, if the appeal is restored, by virtue of the judgment of the Hon'ble
Supreme Court, the appellant can succeed in all the appeals.
8.Per contra, the learned Standing Counsel appearing on behalf of the
Department submitted that the Tribunal did not have the power or
jurisdiction to restore the appeal once a final order has been passed. To
substantiate his submission, the learned Standing Counsel brought to our
notice the order passed by the learned Single Judge of this Court in
V.Ramakrishna Rao-vs-Commissioner of Customs, Chennai, reported in
2010 SCC Onlline Mad 6371, wherein in pari materia provisions under the
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CMA(MD)Nos.807 to 809 of 2015
Customs Act were considered and the learned Single Judge took a view that
the Tribunal does not have the power to restore the appeal which was
dismissed by passing a final order.
9.The learned Standing Counsel further submitted that even on the
merits of the case, the final order was passed in the year 2007 and the
restoration applications were filed only in the year 2014 and there was
absolutely no justification for filing restoration applications after such a
long lapse of time. Therefore, it was contended that the Tribunal was
perfectly right in dismissing the applications. The learned Standing Counsel
concluded his arguments by submitting that no substantial question of law is
involved in the present case. Hence, pleaded for dismissal of all these
appeals.
10.We have carefully considered the submissions made on either side
and perused the materials available on record.
11.There is no dispute with regard to the facts of this case and hence,
it will be more appropriate to directly go into the issue that is involved in
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CMA(MD)Nos.807 to 809 of 2015
these appeals. The appeals filed by the appellant against the order passed by
the Commissioner of Central Excise (Appeals) Madurai, before the Tribunal
was accompanied by an application seeking for dispensing with the
predeposit of the duty amount. The Tribunal, on considering the facts and
circumstances of the case, found that there was no ground to grant such
exemption and hence, directed the appellant to make predeposit amounts
within a period of eight weeks and report compliance. Admittedly, the
condition imposed by the Tribunal was not complied with and hence, a final
order was passed by the Tribunal on 09.08.2007 dismissing the appeals.
12.The Tribunal is a creature of the Statute. Hence, the Tribunal can
act only in exercise of such power and jurisdiction as is conferred under the
Central Excise Act. On carefully going through the Act and Rules, we do
not find any specific power conferred on the Tribunal to restore the appeals
which has been dismissed finally. The Tribunal became Functus officio once
a final order has passed and there is no scope for restoring an appeal
thereafter.
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CMA(MD)Nos.807 to 809 of 2015
13.Even otherwise on merits, we do not find any justification for the
appellant to file a petition for restoration of appeals after the exorbitant
delay of nearly 7 years. The amount that was directed to be deposited was
not exorbitant and the total amount that is involved in all the three appeals
put together did not even exceed Rs.7 lakhs. Hence, seeking for restoration
of appeals after 7 years without any justification, only calls for a dismissal.
14.The appeals that have been filed before this Court can be
maintained only if substantial question of law is involved. There is no
question of law much less substantial question of law to be answered in
these appeals and what was canvassed before this Court revolves only
around facts of the case. It is yet another ground as to why we do not find
any merits in these appeals.
15.In view of the above discussion, all the appeals stand dismissed.
No costs.
(M.S.R.,J.) (N.A.V.,J.)
09.11.2022
Index : Yes/No
Internet : Yes
Ns
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CMA(MD)Nos.807 to 809 of 2015
To:
1.The Customs Excise and Service Tax,
Appellate Tribunal
South Zonal Bench,
26-Haddows Road,
Chennai-600 006.
2.The Commissioner of Central Excise
NGO 'A' Colony,
Tirunelveli-627 007.
3.The Section Officer,
VR Section,
Madurai Bench of Madras
High Court,
Madurai.
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CMA(MD)Nos.807 to 809 of 2015
M.S.RAMESH,J.
and
N. ANAND VENKATESH,J.
Ns
C.M.A.(MD)Nos.807 to 809 of 2015
09.11.2022
https://www.mhc.tn.gov.in/judis
