2017 (9) TMI 88 - AT - Service Tax

Restoration of appeal - condonation of delay in making the pre-deposit - Held that - Once the appeal has been dismissed for non-compliance, the Tribunal becomes functus officio - The applicant/assesse cannot choose the time at his own within to comply with the direction to make pre-deposit when there was a specific direction prescribing the time limit. If an assessee whose appeal has been dismissed for non-compliance of pre-deposit can choose to make the pre-deposit even after a period of ten years and file an application before the Tribunal for restoration of appeal along with condonation in making pre-deposit, there will be no finality to litigations - the applicant has chosen to make the deposit after dismissal of appeal saying that there is delay of 253 days. Such practice adopted by the applicant cannot be entertained - restoration application dismissed - appeal dismissed - decided against appellant.

Summary

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

Analysis:
The appellant sought restoration of appeal after it was dismissed for not complying with the pre-deposit order under Section 35F of the Central Excise Act, 1944. The appellant argued that they faced financial hardships, leading to a delay of 253 days in making the pre-deposit of ?12,00,000. The appellant contended that they should be allowed to contest their case on merits since they have now complied with the Tribunal's directions. The appellant filed a miscellaneous application seeking condonation of the delay in making the pre-deposit.

The respondent strongly opposed the restoration applications, stating that after the dismissal of the appeal for non-compliance with the pre-deposit, the Tribunal had no jurisdiction, and the only remedy available was to approach the High Court. The respondent argued that the application for restoration could not be entertained.

Upon hearing both sides, the Tribunal observed that the appellant made the deposit only after the appeal was dismissed. The Tribunal noted that there was no provision to condone the delay in making the pre-deposit after the appeal had been dismissed. It was emphasized that the appellant should have sought an extension of time for making the pre-deposit rather than choosing to comply after the dismissal. The Tribunal held that allowing such delays would lead to a lack of finality in litigations and render statutory provisions redundant.

The Tribunal found that the delay in this case was significant, and the deposit made after the dismissal could not be considered a pre-deposit. It was stated that if the delay was nominal or due to a genuine reason, the situation might have been different. However, in this case, the appellant's actions were not acceptable. Consequently, the Tribunal held that the restoration application lacked merit and dismissed it along with the miscellaneous application seeking condonation of delay.

In conclusion, the Tribunal emphasized the importance of timely compliance with pre-deposit orders and the need to uphold the finality of decisions. The restoration application was deemed devoid of merit and dismissed accordingly.