2009 (5) TMI 86 - AT - Central Excise

Application for restoration of appeal - the appeal was dismissed on 5-11-2007. The present application is filed on 29-8-2008. The period of filing the appeal is three months from the date of communication of the order. It is true that there is no specific provision under the Central Excise Act, 1944 or the Rules framed thereunder prescribing the period of limitation for filing the application for restoration of the appeal dismissed either for non compliance of the provisions of Section 35F of the Central Excise Act, 1944 or otherwise. Further, under no stretch of imagination, there could be a justification to file an application at the sweet will of the applicant. Since the original period for filing the appeal is itself described as three months, the application for restoration will have to be filed within the maximum period of three months from the dismissal of the appeal. In any case, any application filed beyond such period has to disclose cause for the delay. In the present application, there is no cause disclosed application dismissed

Summary

Issues: Application for restoration of appeal due to non-compliance with deposit order under Section 35F of the Central Excise Act, 1944.

Analysis:
1. The applicant sought restoration of an appeal that was dismissed due to non-compliance with a deposit order. The applicant claimed financial difficulties prevented timely compliance with the order, arguing that the total deposit of Rs. 9.00 lakhs fulfilled the requirements under Section 35F of the Central Excise Act, 1944.

2. The advocate for the applicant contended that since the total amount had been deposited as per the original order, the appeal dismissal should be set aside, and the appeal should be reinstated for a merits hearing. However, the Departmental Representative opposed the application, citing its filing in August 2008 as a reason for dismissal.

3. Records revealed that the appeal, originating in 2004, was initially dismissed in 2005 but later restored upon the appellant's application. Subsequent orders modified the deposit amount, leading to the eventual dismissal of the appeal in 2007 due to non-compliance with the deposit requirements.

4. Despite extensions granted for depositing the balance amount, the appellant failed to meet the deadline, resulting in the appeal's dismissal in 2007. Subsequent applications for restoration were also unsuccessful, with the current application filed in August 2008 lacking sufficient cause for the delay in seeking restoration.

5. The Tribunal noted the absence of disclosed reasons for the appellant's failure to appear during crucial hearings and the lack of effort in pursuing the matter diligently. The application's filing beyond the three-month period from the appeal dismissal without a valid cause further weakened the case for restoration.

6. Ultimately, the Tribunal found no compelling reasons presented for restoring the appeal, emphasizing the importance of timely compliance and diligent pursuit of legal matters. Consequently, the application for restoration was dismissed due to the lack of sufficient cause and the failure to meet the required timelines for filing such applications.