2012 (11) TMI 197 - AT - Central Excise

Restoration of appeal - non-compliance of stay order Held that - Appeal was dismissed for non-production of proof of deposit of penalty and it turned out in an application for restoration of such an appeal that the amount had already been deposited within the time granted but for some reason the same could not be reported or brought to the notice of the Tribunal before the appeal came to be dismissed - Such a construction would obviously defeat the ends of justice because it would amount to taking too technical a view of the matter just because there is absence of a positive provision authorising the Tribunal to restore such an appeal appeal restored.

Issues Involved:
Application for restoration of appeal due to non-compliance with pre-deposit orders.

Detailed Analysis:

1. Background: The appellant filed an application for restoration of appeal (No. C/311-313/06) after non-compliance with pre-deposit orders resulting in dismissal of the appeal. The Tribunal had directed pre-deposit of specific amounts towards customs and excise duties, which the appellant failed to comply with, leading to multiple dismissals of their restoration applications.

2. Appellant's Submission: The appellant contended that they had now pre-deposited the ordered amounts and sought restoration of the appeals. They cited financial hardship as the reason for the delay in compliance and relied on a judgment of the Hon'ble High Court of Gujarat to support their position.

3. Department's Argument: The departmental representative opposed the restoration, highlighting the significant delay in compliance and the repeated dismissal of restoration applications over the years. They argued that the Tribunal should not consider the appellant's restoration request due to the prolonged non-compliance.

4. Tribunal's Findings: After considering both parties' submissions and the case records, the Tribunal acknowledged the undisputed facts of non-compliance leading to dismissal of the appeal and subsequent restoration applications. However, the Tribunal noted that the appellant had now complied with the pre-deposit orders after a considerable delay, citing financial difficulties as the cause.

5. Legal Precedent: The Tribunal referred to a judgment of the Hon'ble High Court of Gujarat in a similar case, emphasizing that the Tribunal has the power to recall orders of dismissal due to non-compliance without it being considered as a review. The Tribunal found that the principles outlined in the judgment supported the appellant's right to pursue substantial justice despite the delay in compliance.

6. Judicial Analysis: The Tribunal analyzed the legal principles outlined in the Hon'ble High Court of Gujarat's judgment, emphasizing the importance of substantial justice over technical considerations. The Tribunal concluded that the appellant's compliance with the pre-deposit orders, albeit delayed, warranted the restoration of the appeals to ensure the appellant's right to address the issues at hand.

7. Decision: Based on the legal precedent and the circumstances of the case, the Tribunal allowed the application for restoration of the appeal. The Tribunal recalled its earlier orders dismissing the appeal for non-compliance and restored the appeal numbers C/311-313/06 for further disposal, directing the registry to list the appeals accordingly.

This detailed analysis of the judgment highlights the issues involved, the arguments presented by both parties, the legal precedent considered by the Tribunal, and the final decision reached in favor of restoring the appeals due to the appellant's compliance with the pre-deposit orders, despite the delay.

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