2015 (12) TMI 1683 - HC - Central Excise

Restoration of appeal - appeal dismissed on account of failure to make pre-deposit - Held that - When the question is only of pre-deposit not having been made and the appeal having been dismissed without consideration on merits, Courts have taken somewhat liberal stand in allowing the party to pursue the appeal by fulfilling such requirement even after substantial time gap - appeal restored before the CESTAT on the condition that the petitioner fulfills the pre-deposit requirement latest by 15-1-2016 - decided in favor of petitioner.

Summary

Issues:
Challenge to CESTAT order for dismissal of appeal due to long delay and failure to make pre-deposit.

Analysis:
The petitioner challenged an order by the CESTAT dated 21-8-2014, where the appeal was dismissed due to a long delay in filing the restoration application and failure to make a pre-deposit of 10%. The petitioner had appealed against duty and penalty liabilities imposed by Excise authorities. The Tribunal required the pre-deposit, which was not fulfilled, resulting in the dismissal of the appeal without a hearing on merits.

The petitioner's counsel argued that other appeals by the same group were allowed by the Tribunal, and the Department had filed appeals before the High Court, which are pending. It was mentioned that due to various reasons, restoration applications could not be filed in this case and another case of the same petitioner. The petitioner's advocate was absent, and the petitioner was unaware of the appeal's dismissal. The petitioner expressed readiness to fulfill the pre-deposit requirement now.

The Department's counsel highlighted the significant delay in filing the restoration application. The Court noted that in cases where the only issue is the failure to make a pre-deposit, and the appeal was dismissed without considering the merits, courts have been lenient in allowing parties to fulfill such requirements even after a substantial time lapse. Citing past orders of the Court and the Supreme Court was deemed unnecessary.

Considering the facts presented, the Court decided to restore the Tax Appeal of the petitioner before the CESTAT, with the condition that the petitioner must fulfill the pre-deposit requirement by 15-1-2016. The petition was disposed of accordingly.