9911796707
TMI Blog2009 (10) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Court by an order dated 30-7-2009, with a direction to the Commissioner (Appeals) to reconsider the matter in the light of the fresh material which became available to the petitioner-company after the passing of the earlier order. Commissioner(Appeals) submits that the appeal has already been dismissed before passing of court order. Held that- We say so on a parity of reasoning that since the order of dismissal was entirely based on the failure of the petitioner to make the pre-deposit which was found by us to be unsustainable, there was no reason why the order of dismissal should not be quashed. We accordingly allow this writ petition, quash order passed by the Commissioner (Appeals) and direct that request of the petitioner for wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the passing of the earlier order. 2. It so happened that the appeal preferred by the petitioner-company was taken up on 28-7-2009 and dismissed on the ground that the pre-deposit directed in terms of orders dated 13-2-2009 and 6-7-2009 had not been made by the petitioner. 3. When the matter appears to have gone back to the Commissioner (Appeals) pursuant to the direction issued by this Court, the Commissioner (Appeals) was of the view that the appeal having been already dismissed by him before passing of the order by this Court dated 30-7-2009, he could not legally recall the dismissal order and comply with the direction issued by this Court for reconsideration of the matter. He has accordingly filed Civil Misc. Application No. 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions. It is true that as on the date this Court passed its order on 30-7-2009, the Commissioner (Appeals) had already dismissed the appeal filed by the petitioner-company, yet the Commissioner (Appeals) was not, in our opinion, in any way handicapped in recalling the said order of dismissal once this Court had set aside the order on the applications for waiver of pre-deposit and directed passing of fresh orders upon reconsideration of the matter. The Commissioner (Appeals) appears to have taken a hyper technical view of the matter in considering himself powerless in recalling an order which was no longer sustainable in the light of the order passed by this Court. He appears to have overlooked the fact that the very basis on which the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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