2019 (1) TMI 318 - HC - Central Excise

Maintainability of review application - failure to make pre-deposit - Section 35F of the Central Excise Act, 1944 - Held that - An order dismissing an appeal on the ground of failure of the appellant to make the pre-deposit is like dismissal of an appeal for non-prosecution. It is never on merits. Like the Court has the power to restore a suit dismissed for non-prosecution, the Court enjoys similar powers to restore such appeals. The tribunal is directed to hear the appeal before it without insisting on any further pre-deposit within six months from the date of communication of this order - application disposed off.

Summary

Issues:
- Non-payment of duty by the appellant leading to dismissal of appeal
- Jurisdiction of High Court to extend time granted by Supreme Court
- Applicability of Section 35F of the Central Excise Act, 1944
- Power of the Court to restore appeals dismissed for failure to make pre-deposit
- Tribunal's dismissal of application due to becoming functus officio

The High Court judgment dealt with a case where the appellant failed to pay the duty as directed by the tribunal, resulting in the dismissal of their appeal. The appellant made various attempts, including approaching the High Court and the Supreme Court, seeking relief from the pre-deposit requirement. The respondent department opposed the appellant's application, arguing that the time granted by the Supreme Court had lapsed, and the High Court could not enforce the tribunal's order. However, the appellant contended that there were funds lying with the department, which could be adjusted against their dues. The appellant relied on precedents where courts had the power to set aside dismissal orders for failure to comply with pre-deposit conditions upon subsequent compliance. Additionally, the appellant highlighted Section 35F of the Central Excise Act, 1944, to support their argument that sufficient security existed to enable the tribunal to hear the appeal without immediate payment.

The High Court considered the Gujarat High Court judgments in 'Scan Computer Consultancy vs. Union of India' and 'Priya Dyers vs. Commissioner of Central Excise' to assert its power to restore appeals dismissed for late compliance with pre-deposit requirements. The appellant's counsel cited several Supreme Court decisions where time for pre-deposit was extended, emphasizing the need for a liberal view on late compliance. The appellant argued that the dismissal of an appeal for failure to make pre-deposit was akin to dismissal for non-prosecution and could be restored by the court. The High Court agreed with this submission, noting that the tribunal's dismissal of the appellant's application due to becoming functus officio was unwarranted.

In its final decision, the High Court stayed the garnishee order to deduct funds from the appellant's account and directed the tribunal to hear the appeal without requiring any further pre-deposit within six months. The High Court set aside the tribunal's order, clarifying that it had not become functus officio and should proceed as directed. The appeal and application were disposed of, with the parties entitled to a certified copy of the order upon compliance with formalities.