Fraud vitiates all acts, and judgments obtained through fraud are considered nullity. Misrepresentation of facts before the Court disentitles the party to an opportunity to be heard on merit.

1. This is an appeal filed under Section 35-G of the Central Excise Act, 1944 challenging final order dated 31.08.2005 passed by the learned Customs, Excise and Service Tax Appellate Tribunal Principal Bench, New Delhi (for brevity the Tribunal'). The Tribunal has noticed all the false assertions made by the appellant that the demanded, amount of Rs. 3,06,65,035/-confirmed against it had already been recovered. An application was filed for waiving the condition of pre-deposit of interest and penalty, which was sine qua non for hearing of the appeal. The Tribunal vide order dated 15.02.2012 waived the condition of pre-deposit of interest and penalty. The respondent-Department moved a miscellaneous application No. E/446/12 clarifying that the appellant did not deposit the entire amount of duty and sought rectification of order dated 15.02.2012. The concerned Commissioner filed an affidavit in support of the application stating that the appellant had deposited only Rs. 58,28,711/- on 27.07.2011. On the date of hearing on 27.07.2012 before the Tribunal the appellant controverted the assertion made by the Revenue and the Tribunal directed the appellant to produce proof of deposit of the whole duty demand on 31.08.2012. This factual position was accepted by counsel for the appellant. It is thus obvious that the appellant misled the Tribunal with regard to deposit of duty demand.

2. It is in the aforesaid facts and circumstances that the Tribunal proceeded to observe in para 7 as under:-

"From the above it is clear that the appellant has not deposited the duty demand confirmed against him and the appellant has obtained the stay and by practicing fraud as such stay order dated 15.02.2012 is recalled and stay application is dismissed."

3. It is needless to observe that bare perusal of Section 35 F of the Central Excise Act, would show that when the goods which were subject matter of dispute are not under the control of Central Excise authorities, then the person keen to appeal against the impugned order is required to deposit the duty demand with the adjudicating authorities as a pre-condition of hearing of appeal unless condition of pre-deposit is dispensed with by the Tribunal.

4. The appellant did not apply for dispensing with the condition of pre-deposit of duty demand by misleading the Tribunal that the whole amount determined by the Revenue had been deposited. Accordingly, the appeal filed by the appellant was dismissed. Feeling 'aggrieved the appellant has approached this Court by filing appeal under Section 35 G.

5. Notice of motion. Mr. Piyush Gupta accepted notice on behalf of the respondents.

6. With the consent of the parties, the appeal is taken on board and the arguments have been heard.

7. Mr. Sharma, learned counsel for the appellant has not been able to show any justification for making a deliberate attempt to mislead the Court for the purpose of acquiring interim relief. All that has been submitted by Mr. Sharma is that there was typographical error which created wrong impression in the mind of the Tribunal. However, such a stand taken by the appellant cannot be accepted, because in paras (a) (b) & (c) of the memorandum of appeal the appellant has claimed in categorical terms that the amount of duty demand had already been paid, then there is no question of any typographical mistake and the argument in that regard cannot be accepted.

8. It is well settled that fraud vitiates all acts. In case of S.P. Chengalvaraya Naidu v. Jagannath & Ors. (1994) 1 SCC 1, Hon'ble the Supreme Court quoted Edward Coke of England who held that "fraud avoids all judicial acts, ecclesiastical or temporal". The view has been, followed in. the case of A.V. Papayya Sastry and Ors. v. Govt. of A.P and Ors. (2007) 4 SCC 221 and K.D. Sharma Steel Authority of India Ltd. and Ors. (2008) 12 SCC 481. In para 22 of the judgment pertinent observations have been made which arm the Courts to declare any fraudulent judgment as a nullity at any