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2016 (3) TMI 799 - AT - CustomsRestoration of appeal - Dissmissed exparte for non-appearance and non-compliance by the appellant - Held that - the appellant have not received the stay order and also final order of dismissal of appeal for non-compliance and immediately on securing the copy of the order from the Tribunal they filed restoration application. Dismissal of appeal for non-compliance and also for non-appearance exparte, should not deprive the parties to contest the order on merits when delay in filing the restoration application has been explained and the contesting parties should not suffer for lapses on the part of their counsel followed by the decision of Hon ble High Court in the cases of Indam Recycling Co.(P)Ltd. Vs UOI 2015 (10) TMI 682 - KERALA HIGH COURT and Atithi Gokul Automobile Works Vs UOI 2014 (4) TMI 883 - GUJARAT HIGH COURT and Hon ble Supreme Court in the case of Rafiq and Another Vs Munshilal and Another 1981 (4) TMI 255 - SUPREME COURT . Pre-deposit of differential duty - Goods are covered under S.W.M. Act and by virtue of Section 3(2) of Customs Tariff Act, goods imported were chargeable to CVD as per RSP read with Section 4A of Central Excise Act and Rules thereunder - Held that - as the appellants have not made out a prima facie case for complete waiver of predeposit. Therefore, the appellant is directed to predeposit a sum of ₹ 10,00,000/- (Rupees Ten lakhs only)and upon such deposit, there shall be waiver of predeposit and recovery of balance dues. - Decided in favour of appellant
Issues:
1. Restoration of appeal against the order of the Commissioner of Customs. 2. Non-compliance leading to dismissal of the appeal. 3. Consideration of financial difficulties for waiver of predeposit. 4. Prima facie case for waiver of predeposit based on legal provisions. Issue 1: Restoration of appeal against the order of the Commissioner of Customs The appellant filed a MISC application for restoration of appeal against the order of the Commissioner of Customs. The Tribunal had ordered predeposit of the entire amount of differential duty, as the appellant failed to appear on several occasions despite adjournments. The final order dismissing the appeal for non-compliance was issued when the appellant did not comply with the predeposit order within the stipulated time. Issue 2: Non-compliance leading to dismissal of the appeal The appellant's advocate explained that due to the withdrawal of the brief by the counsel engaged to appear on behalf of the appellant and subsequent sale of the factory premises, they were unaware of the stay order and the final order of dismissal. The appellant filed for restoration upon becoming aware of the dismissal. The Tribunal, after considering the circumstances and legal precedents, recalled the dismissal order and allowed the restoration application. Issue 3: Consideration of financial difficulties for waiver of predeposit The appellant argued that the predeposit amount was ordered without considering their financial difficulties. However, the Tribunal found that the appellant did not make out a prima facie case for complete waiver of predeposit. Considering the financial constraints, the Tribunal directed the appellant to predeposit a specific amount within a specified time frame, with a warning of dismissal for non-compliance. Issue 4: Prima facie case for waiver of predeposit based on legal provisions Upon reviewing the impugned order and relevant legal provisions, the Tribunal found that the goods imported were chargeable to differential duty. While acknowledging the financial constraints of the appellant, the Tribunal directed a partial predeposit amount, emphasizing compliance within the given timeline to avoid dismissal of the appeal without further notice. Overall, the Tribunal allowed the restoration application, recalled the dismissal order, and directed the appellant to predeposit a specific amount within a specified time frame to proceed with the appeal. Failure to comply would result in dismissal without further notice. The decision was based on legal precedents and a consideration of the appellant's circumstances.
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