TRIMURTEE FERTILIZERS LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal is by M/s. Trimurtee Fertilizers Ltd. challenging the adjudicating authority's order confirming against them a demand of Central Excise duly of Rs. 92,86,307/ - and imposing on them a penalty of equal amount.

(2.) HEARD both the sides. A preliminary submission was made by the learned SDR. It was submitted that the appellant -company was being wound up by the Allahabad High Court as recommended by the Board for Industrial and Financial Reconstruction [BIFR]. This submission was not contested. The DR, therefore, urged that the appeal be dismissed under Rule 22 of the CESTAT (Procedure) Rules, 1982. He relied on Misc. Order Nos. 335 -337/2002/NB(D) of the Tribunal's Larger Bench in Appeal Nos. E/3343, 3344 and 3352/2000 -Bom. The learned Consultant for the appellants, however, opposed this prayer and presented their case on merits. The DR also argued on merits.

(3.) WE have examined the records and considered the submissions. A copy of the BIFR's order dated 5 -2 -99, passed under Section 20(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, is available on record. We have also found a copy of the order dated 17 -8 -99 passed by the Appellate Authority for Industrial and Financial Reconstruction [AAIFR] in the appeal filed against the BIFR's order ibid. The BIFR recommended winding up of the company and the AAIFR dismissed the appeal against the said recommendation. Pursuant to the BIFR's recommendation, the Hon'ble High Court passed order dated 24 -11 -99 in Misc. Company Application No. 2/99 taking the view that the Company was liable to be wound up. The High Court's order reads : - "An application has been moved under Section 391 of the Companies Act for permission to submit a scheme. The BIFR has under Section 20(1) recommended the winding up of the company and the appeal has been dismissed by AAIFR. In view of the overriding effect of the Sick Industrial Companies (Special Provision) Act, 1985 and the words of Section 20(2) of the Act prima facie this Court does not appear to have an option but winding up of the company. However, the learned counsel for the applicant may study the matter. List in the third week of December, 1999". We have not been told of what has since happened in the above Company case in the High Court. Nevertheless, after considering the above orders of the BIFR, AAIFR and High Court, we note that the appellant -company is being wound up if not already wound up and, therefore, we are of the view that the appeal of the Company has abated in terms of Rule 22 of the CESTAT (Procedure) Rule, which reads as under : "Where in any proceedings the appellant or applicant or a respondent dies or is adjudicated as an insolvent or in the case of a company, is being wound up, the appeal or application shall abate, unless an application is made for continuance of such proceedings by or against the successor -in -interest, the executor, administrator, receiver, liquidator or other legal representative of the appellant or applicant or respondent, as the case may be" (Emphasis supplied).