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2010 (6) TMI 101 - HC - Central ExciseRestoration- Appeal dismissed by Tribunal for non compliance of pre-deposit order. Amount deposited thereafter and restoration filed but dismissed on ground of limitation. Stay order dated 19.08.2008 directed for pre-deposits within three months from the date of receipts of the order, however case posted on 03.11.2008 for reporting compliance. Stay order received on 27.08.2008 and pre deposit made on 12.11.2008 and therefore order complied with. No representation however on 03.11.2008. Stay order complied but proceedings on account of non representation on 3.11.2008. Impugned order rejecting restoration set aside to grant opportunity to assessee to make out case on merit. Cost of Rs. 2,500 however imposed in view of non- representation to Tribunal to consider on merits. Writ of mandamus allowed.
Issues:
Challenge to order dated 11-1-2010 seeking restoration of Appeal No. E/851/2008 on file. Analysis: The petitioner filed an appeal before CESTAT, and an interim order required a pre-deposit of Rs. 5 lakhs within three months, with a stay granted upon compliance. The petitioner failed to appear on 3-11-2008, leading to dismissal of the appeal. A subsequent deposit on 12-11-2008 was made, but the application for restoration was filed on 5-11-2009, beyond the three-month period. The Tribunal dismissed the restoration application on 11-1-2010, resulting in the appeal remaining dismissed. The main issue was whether the petitioner should be heard before the Tribunal considering the compliance with the pre-deposit order. Upon review, the court noted the compliance with the pre-deposit order, despite the delay in depositing the amount. The petitioner argued that non-representation on 3-11-2008 should not have led to dismissal, as the compliance was completed on 12-11-2008. The court found merit in the argument, considering the circumstances and compliance with the order. The court set aside the order dated 11-1-2010, emphasizing the petitioner's right to be heard and justice. However, the court imposed costs of Rs. 2,500 on the petitioner for non-representation before the Tribunal on 3-11-2008 without a justifiable reason. The petitioner was directed to deposit the costs with the High Court Legal Services Committee within two weeks. The writ petition was allowed, the impugned order was set aside, and the appeal was restored to the Tribunal for a fresh consideration on merits, ensuring a fair opportunity for both parties.
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