2016 (2) TMI 530 - HC - Central Excise

Restoration of appeal - Counsel pointed out that Advocate of the petitioner has remained absent and the petitioner was not aware about dismissal of the appeal. In any case, the appeal was dismissed for not being able to fulfill the pre-deposit requirement, which the petitioner is prepared to do now. - Held that - When the question is only of pre-deposit not having been made and the appeal having been dismissed without consideration on merits, Courts have taken somewhat liberal stand in allowing the party to pursue the appeal by fulfilling such requirement even after substantial time-gap. Orders of this Court and the Supreme Court are not necessary to be cited. In view of the facts on record, the Tax Appeal of the petitioner would be restored before the CESTAT on the condition that the petitioner fulfills the pre-deposit requirement.

Summary

Issues:
Challenge to order of CESTAT for dismissal of appeal due to long delay in restoration application filing, non-fulfillment of pre-deposit requirement, comparison with other appeals, and restoration of Tax Appeal before CESTAT.

Analysis:
The petitioner challenged an order by CESTAT dated 21.08.2014, where the appeal was dismissed due to a long delay in filing the restoration application and non-compliance with the pre-deposit requirement. The Tribunal had imposed a 10% pre-deposit condition, which the petitioner failed to fulfill, resulting in the dismissal of the appeal without a hearing on merits. The petitioner contended that similar appeals from the same group were allowed by the Tribunal, and restoration applications could not be filed promptly due to various reasons, including the absence of the petitioner's advocate and lack of awareness regarding the appeal's dismissal. The petitioner expressed readiness to fulfill the pre-deposit requirement now.

The Department's counsel highlighted the significant delay in filing the restoration application, emphasizing the procedural lapse on the petitioner's part. However, the Court noted that when the issue primarily revolves around non-compliance with the pre-deposit condition leading to the dismissal of the appeal without considering the merits, courts have historically taken a lenient approach in allowing parties to rectify such deficiencies even after a considerable time lapse. The Court pointed out that citing specific orders from higher courts was unnecessary in this context.

Considering the circumstances and facts presented, the Court directed the restoration of the Tax Appeal before CESTAT, subject to the petitioner fulfilling the pre-deposit requirement by the specified deadline of 25.01.2016. The petition was disposed of accordingly, granting the petitioner an opportunity to pursue the appeal by meeting the necessary procedural obligations within the stipulated timeframe.