2014 (12) TMI 32 - AT - Central Excise

Power of Commissioner (Appeals) for restoration of appeal - Non compliance of pre deposit order - Delay of 63 days to make pre deposit - Availment of credit without filing declaration - Held that - It is seen that the applicant filed the application for extension of time to deposit the amount and to report compliance before Commissioner (Appeals) as soon as final order of the Tribunal was received, which was not numbered and also not placed before the Bench. It appears that the applicant filed the present applications as the earlier application was not taken up for hearing. It is obligatory on the part of CESTAT, Registry to issue notice and place the application before the Bench, which was not done in the present case. At any event, the applicant should not suffer due to the fault on the part of the Registry. So, the present applications would be treated as part of the earlier application. 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. 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. - Commissioner (Appeals) is directed to hear and decide afresh the Miscellaneous Application for restoration of appeal in accordance with law after giving reasonable opportunity of hearing to the petitioner. - Following decision of Scan Computer Consultancy 2006 (2) TMI 189 - HIGH COURT OF GUJARAT AT AHMEDABAD - Matter remanded back - Appeal restored.

Summary

Issues:
- Delay in compliance with Tribunal's order to deposit a sum of Rs. 15,000
- Application for Restoration of Appeal (ROA) due to delay in compliance
- Jurisdiction of Tribunal to recall final order
- Applicability of case laws in the present case

Analysis:
1. Delay in Compliance: The applicant failed to comply with the Tribunal's order to deposit Rs. 15,000 within the stipulated time due to financial crisis and closure of the company. The applicant subsequently filed applications for direction to the Commissioner (Appeals) to decide their appeals and for Restoration of Appeal (ROA) due to the delay.

2. Jurisdiction to Recall Final Order: The Revenue argued that the Tribunal lacked jurisdiction to recall the final order directing dismissal of appeals in case of non-compliance. They cited precedents to support their stance, emphasizing that restoration of appeal after a significant delay was not permissible.

3. Applicability of Case Laws: The Tribunal considered the arguments and case laws presented by both sides. Notably, the Tribunal referred to the decision of the Hon'ble Gujarat High Court in a similar case, highlighting the importance of substantial justice over technicalities in such matters. The Tribunal differentiated the present case from the cases cited by the Revenue, stating that the applicant had eventually complied with the deposit requirement.

4. Decision and Direction: After thorough examination of the facts and legal precedents, the Tribunal concluded that the applicant's compliance by depositing the required amount warranted a different approach. Relying on the principle of substantial justice, the Tribunal directed the applicants to report compliance to the Commissioner (Appeals) promptly for further proceedings in line with the Tribunal's previous order.

5. Final Disposition: The Tribunal disposed of all applications filed by the applicants, emphasizing the need for timely compliance and adherence to legal procedures. The Tribunal's decision was based on the specific circumstances of the case, ensuring that the applicant's rights were upheld while also considering the legal framework and precedents cited during the proceedings.