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2014 (11) TMI 538 - HC - Central ExciseWaiver of pre deposit - Merger of order - Whether, in absence of merger of the order of the Tribunal upon the dismissal of the SLP in limine by the Supreme Court on 3.1.2013, the Tribunal could have refused to exercise its jurisdiction to restore the appeal upon pre-deposit of ₹ 10 lacs - Held that - Once a substantive appeal has been filed before the High Court against an order of the Tribunal on the application for waiver of pre-deposit, the order of the Tribunal, in such a case, would merge with the order of the High Court. No prayer was made before the High Court which dismissed the appeal for extension of time for pre-deposit or for restoration of the appeal. No such prayer was also made before the Supreme Court when the special leave petition was dismissed. In that view of the matter, the Tribunal was not in error in dismissing the miscellaneous application. no substantial question of law would arise in the appeal. - Following decision of Commissioner of Customs v. Lindt Exports 2011 (9) TMI 609 - DELHI HIGH COURT - Decided against assessee.
Issues involved:
1. Jurisdiction of the Tribunal to restore appeals upon pre-deposit 2. Doctrine of merger of orders between Tribunal and High Court 3. Applicability of judgments from Gujarat and Delhi High Courts Analysis: 1. The appeal before the Allahabad High Court arose from an order of the Central Excise & Service Tax Appellate Tribunal where the assessees challenged the demand for excise duty. The assessees raised questions regarding the Tribunal's refusal to restore the appeals for non-compliance with a pre-deposit order. The Tribunal dismissed the appeals due to non-compliance with the pre-deposit order, despite the appellants later depositing the required amount. The Tribunal held that it lacked jurisdiction to restore the appeals post the dismissal by the High Court and Supreme Court. The appellants argued that the Tribunal should have restored the appeals upon the deposit made after the Supreme Court's dismissal of the special leave petition. 2. The Tribunal's decision was based on the doctrine of merger, citing a Delhi High Court judgment that once an order of the Tribunal merges with the High Court's order, the Tribunal loses jurisdiction to entertain restoration applications. The appellants relied on Gujarat High Court judgments, arguing that the right of appeal should not be lightly dismissed. The Gujarat High Court had held that the Tribunal could restore an appeal dismissed for non-deposit, emphasizing the importance of substantial justice over technicalities. However, the Allahabad High Court favored the Delhi High Court's view, stating that once a substantive appeal is filed before the High Court, the Tribunal's order merges with the High Court's decision, precluding further restoration. 3. The Allahabad High Court compared the Gujarat and Delhi High Court judgments. The Gujarat High Court's stance allowed for restoration of appeals dismissed for non-deposit, while the Delhi High Court emphasized the finality of the High Court's decision merging with the Tribunal's order. The Allahabad High Court aligned with the Delhi High Court's approach, emphasizing that no extension or restoration requests were made before the High Court or Supreme Court. Consequently, the Tribunal's dismissal of the miscellaneous application was upheld, and no substantial question of law was found in the appeal, leading to its dismissal without costs.
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