2015 (11) TMI 1149 - AT - Customs

Restoration of appeal - non compliance with pre deposit order - Held that - stay order passed by the Tribunal was allowed to attain finality by the assessee inasmuch as the same was not challenged. As such, it becomes clear that the stay order of the Tribunal, in reference to the amount to be deposited and the period within which the same should be deposited had attained finality. If such period is allowed to be extended by the assessee himself at his own whims & fancies, the sanctity of the order passed by the Tribunal would get lost. As regards the reasons for non-deposit of such a small amount of ₹ 10 lakhs, we have gone through the reason given by the assessee in their ROA application. Most of the facts and developments are prior to passing of the stay order, which already stand taken note of by the Tribunal. The period to deposit expired in November 2007 and nothing on record to show as to what happened between the date of passing the stay order and date of reporting compliance leading to dismissal of the appeal so as not to enable the appellant to deposit the amount in question. - Restoration denied.

Summary

Issues:
- Non-compliance with stay order leading to dismissal of appeal
- Request for restoration of appeal after delay in depositing directed amount
- Legal position on restoration of appeals dismissed for non-compliance with stay orders

Analysis:
1. The case involved an appeal dismissed due to non-compliance with a stay order directing the appellant to deposit a specific amount as a condition for hearing the appeal. The appellant sought restoration of the appeal after a significant delay in depositing the directed amount, citing financial difficulties due to being declared a sick unit under the BIFR and ongoing rehabilitation schemes before the High Courts.

2. The appellant's advocate acknowledged that the stay order, directing the deposit of a small amount compared to the total demand, had not been challenged and had attained finality. Despite the deposit being made after 7 years and 3 months, the appellant argued for restoration of the appeal on merits now that the amount had been deposited.

3. The Revenue vehemently opposed the appeal restoration, highlighting that the Tribunal had considered various factors, including the appellant's financial position as a BIFR company, when issuing the lenient stay order. Referring to previous court decisions, the Revenue argued against restoring appeals dismissed due to belated compliance, emphasizing the importance of timely adherence to tribunal orders.

4. Both sides cited relevant court judgments to support their arguments. The Tribunal's decision in the Ablaze Process System case emphasized the difficulty in reviving appeals after prolonged inaction, a view upheld by the Gujarat High Court. Similarly, the Mumbai High Court and Delhi High Court decisions underscored the need for reasonable time limits for appeal restoration post-dismissal due to non-compliance.

5. The appellant's advocate referenced Gujarat and Kerala High Court decisions asserting the appellate authority's power to restore appeals dismissed for non-compliance with pre-deposit conditions, highlighting instances where delays were condoned due to financial constraints and subsequent developments benefiting the assessee.

6. The Tribunal, in its analysis, recognized its authority to restore appeals dismissed for non-compliance with stay orders but stressed the importance of considering reasons for non-deposit and the delay period. After reviewing the stay order, the Tribunal found no justifiable reason for the delay in depositing the directed amount, as most relevant facts were known before the order was issued. The ongoing BIFR and High Court proceedings were deemed insufficient reasons for non-compliance, leading to the rejection of the restoration application.