2013 (12) TMI 343 - AT - Central Excise

Restoration of Appeal Doctrine of merger - Assessee contended that subsequent to dismissal of appeal by the Hon ble Supreme Court they have deposited the amount of Ten Lakhs Rupees Held that - There is no direction by the High Court for recalling of the order of dismissal - In the absence of the same and in the light of the fact that the Tribunal s order stand merged with the High Court and subsequently with the Apex Court order, the Tribunal has no powers to recall such orders - Following Commissioner of Customs vs. Lindt Exports 2011 (9) TMI 609 - DELHI HIGH COURT - when the order of the Tribunal dismissing appeals on account of non-deposit is upheld by Hon ble High Court, the same is merged with the Hon ble High Court s order and attains finality - Tribunal has no jurisdiction to entertain application for restoration of the appeals as it becomes functus officio Decided against Assessee.

Summary

Issues:
- Non-compliance with deposit order leading to dismissal of appeal
- Restoration application filed after deposit post-Supreme Court's dismissal

Analysis:
1. The judgment deals with the issue of non-compliance with a deposit order, resulting in the dismissal of the appeal. The appellant, M/s Kisan Gramodyog Sansthan, was directed to deposit Rs. 10,00,000/- as a condition for hearing their appeal. However, as they failed to deposit the amount, their appeal was dismissed for non-compliance. The appellant subsequently filed a restoration application after depositing the amount post the Supreme Court's dismissal of their appeal. The key contention was whether the deposit made after the Supreme Court's dismissal could be a ground for restoration of the appeal.

2. The Tribunal considered the submissions from both sides and reviewed the history of the case. The appeals filed by the appellant were rejected by the Hon'ble High Court of Allahabad, and this decision was upheld by the Hon'ble Supreme Court. The Tribunal noted that there was no direction from the High Court for recalling the dismissal order. Given that the Tribunal's order merged with the High Court's decision and subsequently with the Supreme Court's order, the Tribunal concluded that it lacked the authority to recall such orders. The appellant was advised to approach the Supreme Court if they sought to challenge the dismissal order.

3. The Tribunal referenced a decision by the Hon'ble Delhi High Court in the case of Commissioner of Customs vs. Lindt Exports, where it was held that when the Tribunal's order dismissing appeals due to non-deposit is upheld by the High Court, it merges with the High Court's decision and becomes final. As a result, the Tribunal loses jurisdiction to entertain restoration applications as it becomes functus officio. Based on this legal precedent and the circumstances of the case, the Tribunal rejected the restoration of appeal applications filed by the appellant.

4. In conclusion, the Tribunal dismissed the restoration of appeal applications, emphasizing that the Tribunal lacked the authority to entertain such applications once the orders had been upheld by the High Court and the Supreme Court. The judgment highlights the importance of complying with deposit orders and the limited scope for restoration once higher courts have affirmed the dismissal decisions.