2014 (12) TMI 775 - HC - Central Excise

Restoration of appeal - Non compliance of pre deposit order - Held that - When the order of pre-deposit has not been complied with the Tribunal has no discretion to entertain the appeal - another aspect which needs consideration in the case on hand is the averment made by the applicant in the affidavit filed before the Tribunal in July 2014 wherein the reason for the non-compliance of pre-deposit order is attributed to the fault of their former advocate Mr.Bharathi. It is the specific plea of the appellant that their former counsel Mr.Bharathi was responsible for not intimating the appellant about the proceedings before the Tribunal and therefore the appellant had sought for change of counsel and is pursuing the matter. it is evident that the appellant has been pursing the matter diligently from the adjudication stage and the reason for non-compliance is attributed to the fault of their former advocate Mr.Bharathi which is stated in the affidavit of the appellant filed before the Tribunal during July 2014. - In view of bona fides as pleaded by the appellant - Appeal restored.

Summary

Issues:
Challenging order of Central Excise and Service Tax Appellate Tribunal regarding dismissal of appeal due to non-payment of pre-deposit amount and subsequent dismissal of restoration petition.

Analysis:
The judgment involves appeals challenging the Central Excise and Service Tax Appellate Tribunal's order dated 24.10.2014, which dismissed the appeals due to non-compliance with the pre-deposit order. The key questions of law raised include whether the Tribunal was right in dismissing the appeal for non-payment of pre-deposit amount and in dismissing the restoration petition. The Court noted the belated compliance with the pre-deposit order by the appellant and the Tribunal's lack of power to entertain appeals when the pre-deposit is not paid. The Court considered whether to interfere with the Tribunal's order to ensure substantial justice.

The appellant's conduct, including filing a typed set without proper verification, was criticized by the Court. The Tribunal had directed the appellant to pre-deposit a specific amount, which was not complied with, leading to the dismissal of the appeals. The appellant's applications for restoration were also dismissed. The Court affirmed the Tribunal's decision that non-compliance with the pre-deposit order deprives the Tribunal of discretion to entertain the appeal.

However, the Court also considered the appellant's plea attributing non-compliance to their former advocate's fault. The appellant claimed that their former counsel failed to inform them about the proceedings, leading to the delay in compliance. The Court noted the appellant's diligent pursuit of the matter from the adjudication stage and the specific plea made in the affidavit filed before the Tribunal.

Considering the appellant's plea and bona fides, the Court decided to interfere with the Tribunal's order. The Court allowed the appeals, setting aside the dismissal of restoration petitions and directing the Tribunal to dispose of the appeals on merits. The Court emphasized that the conditional order had been complied with by the appellants, albeit belatedly, by pre-depositing the entire amount as ordered by the Tribunal. As a result, the appeals were allowed on specified terms, with no costs imposed, and related petitions were closed.