2015 (9) TMI 1313 - AT - Customs

Restoration of Appeal Non-fulfilment of Pre-deposit condition within time specified Tribunals jurisdiction to restore appeal Difference of opinion Question as to Whether Tribunal has jurisdiction to restore appeal of appellant despite violation of High Court s order to make pre-deposit as held by Hon ble Member (Judicial), referred to Third Member to resolve difference of opinion.

Issues Involved:
1. Restoration of appeals dismissed for non-compliance with pre-deposit order.
2. Application of the doctrine of merger.
3. Jurisdiction of the Tribunal to restore appeals after High Court's specified pre-deposit deadline.

Issue-wise Detailed Analysis:

1. Restoration of Appeals Dismissed for Non-Compliance with Pre-Deposit Order:
The appellant, a Chartered Accountant, faced financial difficulties due to the suspension of his practice certificate from July 2010 to September 2013. Consequently, he was unable to make the pre-deposit of Rs. 16.5 lakhs as ordered by the Tribunal on December 4, 2013. The High Court extended the deadline for pre-deposit by 8 weeks, which expired on June 12, 2014. The appellant eventually managed to make the pre-deposit on January 29, 2015, and sought restoration of the appeals. The Tribunal considered the appellant's financial hardship and efforts to comply with the pre-deposit condition, noting that the right to appeal is "sacrosanct" and should not be lightly taken away. The Tribunal emphasized the importance of rendering justice over procedural compliance and allowed the restoration of the appeals.

2. Application of the Doctrine of Merger:
The appellant argued that the doctrine of merger does not apply as the High Court did not pass any order on the merits of the interim order directing pre-deposit. The High Court only extended the time for making the pre-deposit without making any observations on the merits of the case. The Tribunal agreed, stating that there was no consideration of merits by either the Tribunal or the High Court. The Tribunal referred to the rulings of the Bombay High Court and Gujarat High Court, which emphasized the importance of the right to appeal and allowed restoration in cases of delayed compliance with pre-deposit orders.

3. Jurisdiction of the Tribunal to Restore Appeals After High Court's Specified Pre-Deposit Deadline:
The learned AR argued that the doctrine of merger applies and the Tribunal becomes functus officio after the High Court's specified deadline for pre-deposit is violated. The AR relied on the Supreme Court's rulings in Pernod Ricardo India (P) Ltd. and Hari Singh, which discussed the finality of orders and the doctrine of merger. However, the Tribunal, considering various judicial pronouncements, concluded that the doctrine of merger does not apply in this case as the High Court's order was only an extension of the pre-deposit deadline without addressing the merits. The Tribunal restored the appeals, emphasizing the need for substantial justice.

Separate Judgment by Member (T):
Member (T) disagreed with the restoration of appeals, arguing that the Tribunal lacks jurisdiction to restore appeals when the High Court's specified pre-deposit deadline is violated. He emphasized that only the High Court can restore the appeal in such circumstances. He cited the Gujarat High Court's judgment in Priya Dyers, which distinguished the Delhi High Court's ruling in Lindt Exports. Member (T) concluded that the Tribunal becomes functus officio after the High Court's deadline is violated and cannot entertain restoration applications.

Difference of Opinion:
Due to the difference of opinion between Member (J) and Member (T), the matter was referred to the Hon'ble President to nominate a Third Member to resolve whether the Tribunal has jurisdiction to restore the appeal despite the violation of the High Court's pre-deposit deadline or if the Tribunal becomes functus officio and lacks jurisdiction to entertain the restoration application.

Conclusion:
The Tribunal restored the appeals considering the appellant's financial hardship and the importance of the right to appeal. However, the matter was referred to a Third Member due to the differing views on the Tribunal's jurisdiction post-High Court's pre-deposit deadline.

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