2016 (3) TMI 1172 - AT - Central Excise

Restoration of appeal - failure to make pre-deposit - Held that - there is mistake of fact in the earlier order dated 3-2-2014, so far as it considered that the Counsel had appeared, when the restoration applications vide the earlier order dated 31-10-2008 were dismissed - Further, order for dismissal of appeal for default is not the final order and there is no time limit for recall of such order - the appeals are restored to their original numbers.

Summary

Issues:
1. Restoration of appeals dismissed for default due to non-deposit of penalty amount.
2. Interpretation of the finality of orders dismissing appeals for default.
3. Consideration of time limit for recalling orders of dismissal for default.

Analysis:
Issue 1: The appellants filed restoration applications for their appeals dismissed for default due to non-deposit of penalty amounts. In one case, the appellant failed to deposit the required sum and report compliance, leading to dismissal. In another case, a similar scenario resulted in the dismissal of the appeal. The appellants argued that their Counsel's absence and subsequent misunderstanding led to the dismissals. They filed multiple restoration applications over the years to rectify the situation, emphasizing that the adjudicated dues had been adjusted by the Revenue. The appellants sought restoration based on the absence of deliberate lapses in pursuing their appeals.

Issue 2: The legal contention revolved around the finality of orders dismissing appeals for default. The appellants relied on a Gujarat High Court ruling stating that such dismissals are not final orders under the Customs Act. They argued that restoration of appeals dismissed for non-deposit is not equivalent to reviewing a final order, citing procedural rules allowing for restoration in cases of default. The Counsel referenced previous tribunal decisions and Supreme Court rulings supporting the restoration of appeals to uphold the statutory right of appeal and ensure substantial justice.

Issue 3: The Revenue opposed the restoration, highlighting the significant delay in making the deposit, eventually adjusted by the Revenue. However, the Tribunal, after considering the arguments from both sides, acknowledged a mistake of fact in a previous order and recognized the absence of a time limit for recalling orders of dismissal for default. Relying on the legal principles established by the Gujarat High Court and previous tribunal decisions, the Tribunal allowed the restoration applications, restoring the appeals to their original numbers and setting a final hearing date.

In conclusion, the Tribunal granted the restoration of appeals dismissed for default due to non-deposit of penalty amounts, emphasizing the non-finality of such dismissal orders and the absence of a time limit for recalling them. The decision aligned with legal precedents supporting the restoration of appeals to uphold the statutory right of appeal and ensure substantial justice.