2017 (8) TMI 1153 - AT - Central Excise

Restoration of appeal - non-compliance of pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that - There is no provision in the statute or in the CESTAT Procedural Rules to condone the delay in making the pre-deposit after the appeal has been dismissed by the Tribunal for non-compliance of pre-deposit - Once the appeal has been dismissed for non-compliance, the Tribunal becomes functus officio. The case record shows that there was inordinate delay of 726 days on the part of the applicant to comply with the direction to make pre-deposit. The deposit made now by appellant does not have the character of a pre-deposit as it is a deposit made not during pendency of appeal, but after dismissing the same. Again, it cannot be considered as delay at all for the reason that the deposit is made after the dismissal of the appeal. Appeal cannot be restored - appeal dismissed - decided against appellant.

Summary

Issues:
- Restoration of appeal after dismissal for non-compliance of pre-deposit under Section 35F of the Central Excise Act, 1944.

Analysis:
1. Background: The appellant filed an application seeking restoration of appeal after it was dismissed by the Tribunal for failing to comply with the pre-deposit ordered under Section 35F of the Central Excise Act, 1944.

2. Appellant's Arguments: The appellant's counsel submitted that the appellant has now complied with the Tribunal's directions by depositing the required amount. The delay in compliance was attributed to financial hardships, and they sought condonation of the 726-day delay in making the pre-deposit.

3. Respondent's Arguments: The respondent strongly opposed the restoration, arguing that after the dismissal for non-compliance, the Tribunal had no jurisdiction, and the appellant's remedy was to approach the High Court. The respondent also highlighted that the department had succeeded in a similar appeal before the Commissioner (Appeals).

4. Tribunal's Decision: After hearing both sides, the Tribunal examined the case facts. It noted that the appellant failed to comply with the pre-deposit direction leading to the dismissal of the appeal. The Tribunal emphasized that there was no provision to condone such delays post-dismissal. The appellant's claim of financial hardship did not justify the delay.

5. Legal Analysis: The Tribunal clarified that once an appeal is dismissed for non-compliance, the Tribunal ceases to have jurisdiction. Allowing restoration in such cases would render statutory provisions meaningless. The Tribunal emphasized that the deposit made after dismissal did not qualify as a pre-deposit. The delay in this case was significant, and the appellant's choice to comply post-dismissal was not acceptable.

6. Judgment: The Tribunal concluded that the restoration application lacked merit and dismissed it. The miscellaneous application seeking condonation of delay was also disposed of accordingly. The Tribunal highlighted the importance of timely compliance with pre-deposit orders to maintain the integrity of the appeal process.

This detailed analysis of the judgment provides insights into the legal principles governing restoration of appeals after dismissal for non-compliance with pre-deposit orders under the Central Excise Act, 1944.