2010 (8) TMI 249 - AT - Central Excise

Restoration of appeal - appeal of the applicant was dismissed for non-deposit - applicant is not invoking any extraordinary jurisdiction - subsequent application for restoration of the appeal was also dismissed by this Tribunal after noting that a major part of the amount had already been deposited by the party - writ petition filed by the party against the Tribunal s order was also dismissed it was not in dispute that the entire amount covered by the Tribunal s order passed under Section 35F of the Act was either deposited by him or otherwise recovered by the department - payments/recoveries have taken place either during the pendency of proceedings before the High Court or after dismissal - present applicant entitled to the benefit of Scan Computer Consultancy (supra) and Kamaladevi (supra), a benefit which liable to be granted under Rule 41 ibid, if not under Section 35C of the Central Excise Act Appeal restored

Summary

Issues:
- Restoration of appeal dismissed for non-compliance with pre-deposit order.
- Interpretation of legal provisions regarding restoration of dismissed appeals.
- Application of precedents in similar cases for restoration of appeals.

Analysis:
1. The appellant sought restoration of an appeal dismissed for non-compliance with a pre-deposit order of Rs. 35 lakhs towards penalty. The Commissioner of Central Excise had demanded duty and penalties from a partnership firm, including the appellant. Despite multiple legal proceedings, including a writ petition dismissed by the High Court and Supreme Court, the appellant approached the Tribunal for restoration of the appeal. The appellant, son of a deceased partner, relied on decisions of the Gujarat High Court and Supreme Court to support the restoration plea.

2. The learned counsel cited the case of Scan Computer Consultancy where an appeal was dismissed for non-deposit, but the High Court allowed restoration on certain terms. In another case, Kamaladevi's appeal was dismissed for failure to pre-deposit the penalty amount. While her writ petition was dismissed, the Supreme Court reduced the pre-deposit amount for other appellants based on financial difficulties. These cases provided a legal basis for restoration of dismissed appeals upon compliance with pre-deposit orders.

3. The appellant contended that payments totaling Rs. 35 lakhs were made between 2004 and 2008, which should be considered as part of the pre-deposit. The learned JDR opposed, citing finality of previous court orders. However, the Tribunal noted that the appellant's case was not invoking extraordinary jurisdiction but seeking restoration under appellate jurisdiction, supported by Rule 41 of the CESTAT (Procedure) Rules, 1982.

4. Considering the judgments cited and the appellant's compliance with the pre-deposit order, the Tribunal found the restoration application valid. The appellant had either deposited or the department had recovered the entire Rs. 35 lakhs, fulfilling the pre-deposit requirement. The Tribunal distinguished the present application from a review petition and granted restoration of the appeal under Rule 41 of the CESTAT Rules, 1982, or Section 35C of the Central Excise Act.

5. Consequently, the Tribunal allowed the application and restored appeal No. E/468/98, emphasizing the appellant's entitlement to restoration based on compliance with the pre-deposit order and legal precedents. The decision was pronounced in court, granting relief to the appellant in the matter of appeal restoration.