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TMI Blog2013 (10) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... nal becomes functus officio and cannot restore the appeal though predeposit was made later. Under the circumstances and in the facts and circumstances of the case, no error has been committed by the learned Tribunal in dismissing the restoration application and consequently not restoring the appeal to file - Decided against assessee. - Tax Appeal No. 485 of 2013 With Civil Application No. 357 of 2013 - - - Dated:- 18-9-2013 - M. R. Shah And Sonia Gokani,JJ. For the Appellant : Mr. Uday Joshi, Advocate for M/s Trivedi Gupta, Advocate JUDGMENT (Per : Honourable Mr. Justice M. R. Shah) [1.0] Present Tax Appeal has been preferred by the appellant herein challenging the impugned judgment and order dated 02.11.2012 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as CESTAT ) with the following proposed substantial questions of law. 1) Whether on facts and in law the customs, excise and service tax appellate tribunal had committed an error in dismissing application for restoration being application No.C/ROA/606/11 filed by the appellant by not following the law laid down by this Hon ble Court in its judgments in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hip and consequently rejected the said application and directed the appellant to predeposit an amount of Rs.5 lacs as ordered vide Stay Order No.142/2002 dated 07.10.2002, to be deposited by 11.04.2003 and the proof of the same should be produced before the Appellate Authority by 16.04.2003, failing which the appeal will be rejected. [2.2] It appears that despite the above order, the appellant did not deposit the amount of Rs.5 lacs [towards predeposit] and therefore, considering the earlier orders more particularly last order passed in Stay Order No.58/2003, the Commissioner of Customs (Appeals), Jamnagar by order dated 28.04.2003 dismissed the said appeal for noncompliance with the statutory requirement of Section 129E of the Customs Act, 1962. Feeling aggrieved and dissatisfied with the order passed by the Commissioner of Customs (Appeals) dated 28.04.2003 in dismissing the appeal, the appellant preferred appeal before the CESTAT along with the stay application. That vide order dated 28.08.2003 passed in stay application as well as main appeal, the learned Tribunal directed the appellant to deposit an amount of Rs.6 lacs within two months and on producing the evidence in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been protected. [2.4] That by impugned order dated 02.11.2012, the Tribunal has dismissed the said application for restoration. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Tribunal dated 02.11.2012 passed in MA No.C/ROA/606/2011, the appellant has preferred the present appeal with the aforesaid proposed substantial questions of law. [3.0] Shri Uday Joshi, learned counsel appearing on behalf of the appellant has vehemently submitted that the learned Tribunal has materially erred in not restoring the appeal and consequently in not deciding the appeal on merits. It is submitted that when the appellant deposited a sum of Rs.6 lacs and earlier the department encashed the bank guarantee of Rs.2.5 lacs and even seized the goods worth Rs.20 lacs and the duty liability confirmed was of Rs.12,39,065/, the interest of the revenue was protected and therefore, the learned Tribunal ought to have restored the appeal and ought to have given opportunity to the appellant to submit the case on merits. It is submitted that by not restoring the appeal, the valuable right of the appellant to decide the appeal on merits has been taken away. [3.1] Shri Joshi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same. That thereafter the appellant submitted an application for modification, to modify the earlier order dated 07.10.2002 passed in Stay Order No.142/2002 and by order dated 07.04.2003 passed in Stay Order No.15/2003, the learned CIT(A) dismissed the said application for modification however, again granted further time upto 11.04.2003 to deposit a sum of Rs.5 lacs as ordered earlier. In the said order it was mentioned that if the predeposit amount of Rs.5 lacs is not deposited on or before 11.04.2003, the appeal will be rejected. Despite the aforesaid order, the appellant did not comply with the order of predeposit and consequently the learned CIT(A) dismissed the appeal for noncompliance with the statutory requirements of Section 129E of the Customs Act, 1962 vide order dated 28.04.2003. That the appellant preferred appeal before the Tribunal and the learned Tribunal by order dated 08.12.2003 again shown the indulgence and passed an order that if the appellant deposits a sum of Rs.6 lacs within two months from the date of receipt of the order and produce evidence thereof before the Commissioner (Appeals), the appeal before the Tribunal is allowed and the matter is remanded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court on appeal, the Tribunal becomes functus officio and cannot restore the appeal though predeposit was made later. Under the circumstances and in the facts and circumstances of the case, no error has been committed by the learned Tribunal in dismissing the restoration application and consequently not restoring the appeal to file. [4.2] Now so far as the reliance placed upon the decisions of this Court in the case of Hussein Haji Harun (Supra) and Messrs Priya Dyers (Supra) are concerned, on facts the said decisions shall not be applicable to the facts of the case on hand. In all the aforesaid cases, immediately on dismissing the respective appeals, the appellant complied with the order of predeposit of duty and penalty and immediately requested for restoration of the appeal and considering the same it was directed to restore the appeal. In the aforesaid decisions which have been relied upon by the learned counsel appearing on behalf of the appellant more particularly the decision in the case of Hussein Haji Harun (Supra), it is not held that despite the fact that the amount of predeposit is deposited subsequently after so many years from the date of dismissal of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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