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TMI Blog2009 (5) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... by this Tribunal. 3. The appellants had challenged the order passed by the Commissioner (Appeals), Allahabad dated 20-3-07 whereby the appeals filed by the appellants against the original order passed by the Additional Commissioner on 17-10-06 were dismissed. By the said order, the Additional Commissioner had confirmed the duty to the tune of Rs. 7,06,524/- and had also imposed penalty equal to the duty amount against Managing Director and other noticee in the proceedings. Along with those appeals, the appellants had also filed application No. 1433, 1434, 1435 and 1436/2007 which were disposed of on 15-10-07 after hearing the representatives for the parties, and thereby had directed the applicants to deposit sum of Rs. 3,50,000/- within 6 weeks while waiving the other amount demanded under the order in challenge. The matter was then fixed for compliance report on 4-12-07. However, since the applicants failed to comply with the said direction till 8th February, 2008 when the matter was taken up to ascertain about compliance of the said direction, the Tribunal after recording non-compliance of the said direction, dismissed the appeals for non-compliance of provisions of Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iana in Stay application No. 484/2009 in Appeal No. E/475/2009 delivered on 20-4-2009. 8. A perusal of the provisions of law and in particular section 35C and 35D of the said Act along with section 129C of the Customs Act, 1962 which pertain to the procedure to be followed by the Tribunal while dealing with the stay matters, it is seen that the said Act does not make any provision in relation to the restoration of appeals, once they are dismissed for default, whether the default refers to appearance of the parties, or default refers to non-compliance of the obligation regarding pre-deposit of the amount demanded in the order which is said to be challenged. However, the Apex Court in the case of Union of India v. Paras Laminates (P) Ltd. reported in 1990 (49) E.L.T. 322 (S.C.) has clearly held that the Tribunal being a judicial body, it has all the incidental and ancillary powers essentially to make fully effective the express grant of statutory powers. Though the Tribunal has limited powers and defined jurisdiction, it has all powers which are expressly and impliedly granted. Obviously, therefore to make the orders passed by the Tribunal effective and meaningful as well as bearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to comply with their obligation under section 35F of the said Act. The Tribunal has entertained the applications for restoration of such appeals depending upon the facts of each case. Since non-maintainability of the application was sought to be raised on behalf of the respondents, in the case in hand, it was found necessary to refer to said decisions of the Apex Court and all the above decisions in the matter, in the absence of necessary assistance in that regard from either of the parties. 14. In Scan Computer Consultancy case, the Gujarat High Court held that the Commissioner (Appeals) had 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 the higher forum and that it cannot be lost sight of fact that the right of appeal is statutorily granted and it is hedged in by the requirement to make pre-deposit as directed by the appellate authority as a condition for hearing the appeal on merits. However, that condition cannot be used by the appellate authority for the purpose of denying the appellant the right of adjudication which is otherwise statutorily granted. In that view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that regard has held that it is for CEGAT to consider in every such case whether the respondent who applies for recall of the ex parte order against him had sufficient cause for remaining absent when it was passed and, if it is established to the satisfaction of CEGAT that there was sufficient cause, CEGAT must set aside the ex parte order, restore the appeal to its file and hear it afresh on merits. Being so, the law on the point about power of the Tribunal to entertain the application for restoration of appeal dismissed for default is well settled. 17. As regards, the decision of the Apex Court in Haryana Wool Industries (supra), apparently, the said decision do not lay down any law as such but it was delivered in peculiar facts of the said case and it is apparent from para 4 of the said order, which reads thus as : 4. In the particular circumstances of the present case, it is not inappropriate to afford one more opportunity to the appellant to have its grievance adjudicated on its merits by the Tribunal. (Emphasis supplied) Besides, the order passed by the Apex Court gave opportunity to the appellant to have adjudication before the Tribunal in relation to the grievances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication was that the applicants were not in a position to deposit the amount due to technical constraints and undue hardship. There was no whisper about the financial difficulty to deposit the said amount. The question of financial difficulty sought to be raised for the first time in the application for consideration. However, there is no materials placed on record to disclose as to what point of time the financial crises came to an end or at what point of time appellant could come out of financial crises and could raise the funds to the tune of Rs. 14,13,048/-. It is true that the said amount is shown to have been deposited on 29-8-08 but that was much after the expiry of the period of six months. If on account of financial crises in the absence of any plea in the original application for stay, it was necessary for the applicants to disclose as to what point of time the said financial crises arose and what is financial position in this regard as well as how this financial crises and at what point of time the applicant could overcome the same. The application nowhere discloses anything in this regard. Mere statement that due to financial crisis the applicant could not deposit the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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