2006 (2) TMI 189 - HC - Central Excise

Right of adjudication - Restoration of appeal - dismissed the appeal for non-compliance of pre-deposit - HELD THAT - Applying the Apex Court decision in case of Collector Land Acquisition Anantnag v. Ms. Katijui 1988 (3) TMI 87 - HIGH COURT OF GUJARAT it is apparent that Commissioner (Appeals) committed an error in law when he came to the conclusion that he could not restore the appeal and the only remedy was by way of preferring appeal before higher forum. Needless to state that by mere default in making deposit as directed the appellant does not stand to gain anything and only delays his right to have his case adjudicated. Nor does such a delay in making pre-deposit cause any prejudice to the revenue in absence of any stay operating in favour of the petitioner. It cannot be lost sight of that right of appeal is statutorily granted and it is hedged in by the requirement to make pre-deposit as directed by the appellate authority as being a condition for hearing of the appeal on merits. However that condition cannot be used by the appellate authority for the purposes of denying an appellant the right of adjudication which is otherwise statutorily granted. In a given case even if no pre-deposit is made the appeal may not be heard but having dismissed the appeal for non-compliance of pre-deposit does not permit the appellate authority to refuse to restore the appeal upon compliance being shown. Thus the two communications dated 10-1-2006 (Annexure E ) and dated 20-1-2006 (Annexure G ) are hereby quashed and set aside. Considering the fact that the entire litigation has emanated because of the fault of the petitioner in not intimating the change of address in appropriate time it would be just and proper that the petitioner be visited with costs which are quantified at a sum.

Summary

Issues: Challenge to communication by Commissioner of Central Excise, Restoration of appeal, Pre-deposit compliance, Legal basis for restoring appeal, Costs imposed on petitioner.

Challenge to Communication by Commissioner of Central Excise:
The petition challenged communications dated 10-1-2006 and 20-1-2006 issued by the office of Commissioner of Central Excise (Appeals), Ahmedabad, along with Order-in-Appeal No. 152/2005. The petitioner argued that the appeal was not restored due to non-compliance with pre-deposit requirements. The court noted a similar case precedent and proceeded with the final hearing.

Restoration of Appeal:
The petitioner sought restoration of the appeal after the communication from the office of Commissioner (Appeals) stated that the appeal had been finally disposed of. The petitioner requested restoration for hearing on merits, but the office reiterated the direction to file an appeal before a higher forum. The court referred to a previous case where an appeal was restored after a significant period had elapsed, emphasizing the need for substantial justice over technical considerations.

Pre-Deposit Compliance:
The controversy arose from the petitioner's failure to comply with the pre-deposit requirement within the specified time frame. The court highlighted that the delay in making the pre-deposit did not prejudice the revenue, and the right of appeal should not be denied based solely on non-compliance with pre-deposit conditions. The court emphasized that the condition of pre-deposit should not be used to deny the appellant the right to adjudication.

Legal Basis for Restoring Appeal:
The court held that the Commissioner (Appeals) erred in concluding that the appeal could not be restored and that the only remedy was to file an appeal before a higher forum. The court emphasized that the restoration of the appeal did not amount to reviewing the earlier order of dismissal and that the right of appeal should not be hindered by technicalities related to pre-deposit compliance.

Costs Imposed on Petitioner:
Due to the petitioner's fault in not intimating a change of address promptly, costs of Rs. 2,500 were imposed on the petitioner. The court directed the petitioner to deposit the costs with the respondent department within a specified period. The court made the rule absolute, quashing the communications and directing the Commissioner (Appeals) to hear and decide the restoration application afresh.

This detailed analysis of the judgment addresses the issues involved comprehensively, highlighting the legal reasoning and conclusions reached by the High Court of Gujarat at Ahmedabad.