2018 (9) TMI 578 - AT - Service Tax

Restoration of appeal - appeal was dismissed for non-making of pre-deposit - the appellant have deposited ₹ 8 lakhs by WCL by Challan dated 6.2.2018 - Held that - There has been error apparent on record in dismissing the appeal of the appellant for want of pre-deposit whereas there was sufficient amount already paid on behalf of the appellant by WCL, which the Revenue had undertaken to adjust. But somehow this material fact was not placed before this Tribunal and resulted in dismissal of the appeal although the relevant documents was on record. There has been miscarriage of justice in dismissing the appeal of the appellant in spite of their being sufficient pre-deposit of tax - we re-call our earlier order of dismissal of the appeal and also modify our earlier stay order demanding pre-deposit from the appellant and accordingly, we hold that there is sufficient pre-deposit for admission of the appeal - appeal restored.

Summary

Issues:
- Restoration of appeal due to non-making of pre-deposit
- Knowledge of dismissal order by the appellant
- Error in dismissing the appeal for want of pre-deposit
- Condonation of delay and restoration application
- Opposition by Revenue for restoration and condonation
- Legal precedents cited by Revenue
- Consideration of sufficient pre-deposit for admission of appeal

Analysis:
The appellant filed an application for restoration of their appeal, which was dismissed for non-making of pre-deposit as directed by the Tribunal. The appellant claimed they were unaware of the dismissal order until recovery proceedings were initiated by the department. It was revealed that a significant amount had already been paid on behalf of the appellant by another party, which should have been considered for pre-deposit. Despite the error in dismissing the appeal, the appellant deposited an additional amount as well. The appellant sought restoration and condonation of delay based on the peculiar circumstances of the case.

The Revenue opposed the restoration application, arguing that the appellant failed to present the facts accurately to the Tribunal and did not file a rectification application. Citing legal precedents, the Revenue contended that seeking relief due to alleged negligence after a conscious decision not to lead evidence is a bad practice. The Tribunal considered the arguments from both sides and acknowledged that there was a miscarriage of justice in dismissing the appeal despite the sufficient pre-deposit of tax. Consequently, the Tribunal recalled the earlier dismissal order, modified the stay order, and allowed the restoration application and condonation application. The appeal was restored for a hearing on merit, with a final hearing date set for a specific day.