2015 (12) TMI 797 - AT - Central Excise

Restoration of appeal - Appeal dismissed for non compliance of pre deposit order - Held that - Stay Order directing the appellant to make pre-deposit of ₹ 5,00,000/- within a period of 8 weeks had been passed on 21.5.2008. But since the appellant failed to deposit the directed amount, the appeal was dismissed on 22.10.2008. However, before dismissal of appeal, out of ₹ 5 Lakhs, ₹ 2.5 lakhs had been deposited. The balance amount of ₹ 2.5 lakhs was deposited during the period from October, 2011 to June, 2014 i.e. under five challans dated 13.10.2011, 21.12.2012, 10.01.2013, 25.03.13 and 18.06.2014.The deposit of balance amount is not disputed. The point of dispute is as to whether in these circumstances, the appeal filed by the appellant is to be restored. In our view, the ratio of the judgement of the Hon ble Gujarat High Court in the case of Scan Computer Consultancy (2006 (2) TMI 189 - HIGH COURT OF GUJARAT AT AHMEDABAD) and also the decision in the case of S.T. Texturisers Vs. Union of India (2000 (5) TMI 50 - HIGH COURT OF GUJARAT AT AHMEDABAD) is squarely applicable to the facts of this case. Accordingly, the delay in compliance of the Stay Order dated 21.05.2008 is condoned and the Final Order dated 22.10.2008 dismissing the appeal for non-compliance is recalled. - Appeal restored.

Summary

Issues:
1. Non-compliance with pre-deposit order under Section 35 F of the Act.
2. Restoration of appeal after dismissal for non-compliance.

Analysis:
1. The Tribunal had directed the appellant to deposit Rs. 5 lakhs within 8 weeks for compliance with Section 35 F. The appellant failed to comply, leading to the dismissal of the appeal. The appellant later deposited the balance amount in multiple installments from 2011 to 2014. The appellant filed a restoration application, citing financial hardships for the delay in compliance. The appellant's counsel argued for restoration based on precedents where non-compliance did not bar restoration of appeal. The Departmental Representative opposed the restoration, citing the long delay. The Tribunal noted the deposit of the balance amount and referred to judgments by the Gujarat High Court and other courts where restoration was allowed in similar cases. Consequently, the Tribunal allowed the restoration application and recalled the order dismissing the appeal for non-compliance, restoring the appeal for decision on merits.

2. The Tribunal considered the circumstances leading to the non-compliance with the pre-deposit order and the subsequent deposit of the balance amount over several years. Relying on legal precedents, the Tribunal found the appellant's case suitable for restoration despite the delay in compliance. The Tribunal emphasized the statutory right to appeal and the condition of pre-deposit as not being a bar to restoration if compliance is eventually met. The Tribunal's decision was based on the principles established in previous judgments, allowing for the restoration of the appeal and setting it for a decision on merits.