2004 (3) TMI 469 - AT - Central Excise

Summary

Issues:
Non-compliance with Section 35F regarding pre-deposit for maintaining appeal on merits.

The judgment deals with an application seeking to recall a Final Order and restore an appeal that was dismissed for non-compliance with Section 35F. The Bench had earlier directed the appellants to pre-deposit a specified amount within a set timeframe, which was not evidenced on record on the specified date. The application claimed the pre-deposit had been made earlier under protest, but the Bench noted that compliance under protest does not fulfill the statutory requirement. The appellants failed to inform the Bench about the pre-deposit during the previous hearing, leading to the dismissal of the appeal. The application did not provide any satisfactory explanation for this omission. The Tribunal emphasized that a pre-deposit made under protest cannot be considered as complying with Section 35F, which is essential to maintain the appeal on its merits.

The Dispute Resolution (DR) argued that an appeal cannot be heard on its merits as long as the pre-deposit remains under protest. The Tribunal reiterated that compliance with Section 35F is mandatory for maintaining the appeal. The judgment highlighted that the appellants were aware of the pre-deposit when the appeal was considered previously but failed to bring it to the Bench's attention. The lack of explanation in the current application regarding this crucial omission further weakened the appellants' case. Consequently, the Tribunal rejected the application but granted the appellants the option to approach the Tribunal again with valid grounds for restoration of the appeal in accordance with the law.

In conclusion, the judgment underscores the significance of complying with statutory requirements, particularly Section 35F, for maintaining an appeal on its merits. It emphasizes that a pre-deposit made under protest does not fulfill the necessary conditions for appeal restoration. The Tribunal's decision to reject the application was based on the failure to provide a satisfactory explanation for not disclosing the pre-deposit during the previous hearing. The appellants were advised to follow the proper legal procedures if they intended to seek restoration of the appeal.