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TMI Blog2016 (4) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... ct are only in nature of procedural requirements, but for delay in meeting the pre-deposit requirement, the primary right of appeal cannot be extinguished. It is apparent that the Tribunal cannot deprive the substantive right of the party to prefer the appeal on the mere ground that there is violation of procedure. Therefore, the order of the Tribunal, dismissing the restoration application and the order dismissing the appeal itself are liable to be set aside. Considering the claim of availability of merits, the quantum of tax under challenge, and the financial distress pleaded, it is just and necessary that the appellant should be allowed to present her case on merits in the appeal. It is ordered accordingly. - C.M.A.Nos.97, 158 and 159 of 2016, C.M.P.Nos.972, 1345, 1347 of 2016 - - - Dated:- 29-1-2016 - M. Jaichandren And S. Vimala, JJ. For the Appellant : Mr. S Jaikumar For the Respondent : Mr. A P Srinivas, Standing counsel for customs JUDGMENT ( Judgment of the Court was delivered by S. Vimala, J. ) For non-compliance of the pre-deposit requirement under Section 129E of the Customs Act, 1962, the (CESTAT) Customs, Excise and Service Tax Appellate Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to the amendment made to Section 35F of Central Excise Act, 1944. 5. In view of the contentions raised by the Revenue, it is necessary to consider the provisions relating to pre-deposit being made as a condition precedent for maintainability of the appeal. 5.1. The provisions relating to mandatory pre-deposit payments as a pre-requisite for filing first stage and second stage appeals under Customs, Central Excise and Service Tax were introduced in the Finance Act (No.2), 2014 effective from the date of its enactment i.e. 6 August 2014. 5.2. The Finance Act (No.2), 2014, as amended Section 35F of Central Excise Act, 1944, would include mandatory pre-deposit provisions. As per the said provisions, an appeal against the order passed by the lower authority will not be entertained, unless the appellant has made a pre-deposit of 7.5%, in case of first stage appeal and 10% in case of second stage appeal, of the duty, where duty or duty and penalty are in dispute or penalty, where penalty is in dispute. Similar provision for mandatory pre-deposit was introduced in the Customs Legislation, by the Finance Act (No.2), 2014, by amendment of Section 129E of the Customs Act, 1962. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e function in the performance of which the document was produced before him is over and thereafter he becomes Functus Officio, having no power under Section 38 to impound the document, Kamalchand v. State of M.P., AIR 1966 MP 20, 22 (FB). [Indian Stamp Act (2 of 1899), S.33(1)]. 6.2. A task performed. Board of School Trustees of Washington City Administrative Unit v. Benner, 22 NC 566, 24, SE 2d 259, 263. Having fulfilled the function, discharged office, or accomplished the purpose, and therefore of no further force or authority. Applied to an officer whose term has expired and who has consequently no further official authority; and also to an instrument, power, agency, etc., which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect. Holmes v. Birmingham Transit Co., 270 Ala. 215, 116, So. 2d 912, 919. 6.3. One who has fulfilled his office or is out of office, an authority who has performed the act authorised, so that the authority is exhausted. 6.4. On the construction of the expression 'functus officio' to the facts of this case, it cannot be said that the Tribunal has become functus officio, once the Tribunal had passed an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law is to ensure justice. If procedure is the handmaid of justice and not the mistress of the justice and if the handmaid is entrusted with the power of mistress, then, the consequences will be disastrous. Therefore, substantive justice cannot be permitted to take the back seat, allowing the procedure to occupy the front seat. 9. The learned counsel for the Assessee would submit that the right to prefer an appeal is a statutory right touching the substantive right of the parties, while the provisions relating to pre-deposit is procedural in nature and that the procedural law is only a handmaid of justice and not the mistress of justice; so contending, the learned counsel for the Assessee would submit that having regard to the huge amount of pre-deposit to be made and also having regard to the financial hardship of the appellant (widow), the Tribunal should have been lenient in granting time and in any event, the Tribunal should have restored the appeal having regard to the merits of the claim involved in the main case. 9.1. It is contended by the learned counsel for the Assessee that the Assessee has a very good case, on merits, and in support of this contention, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the High Court and attains finality and thus, the Tribunal becomes functus officio and there is no jurisdiction for restoration of appeal. But, the cases on hand stand on a different footing. There is no merger of the order of the Tribunal with the order of the High Court. Challenge as to the dismissal of the restoration application, is under consideration. Therefore, as rightly contended by the learned counsel for the Assessee, the Tribunal did not become functus officio and the Tribunal has incorrectly relied upon the decision of Lindt Exports' case. It is also pointed out that this Judgment has been distinguished by the same High Court, in the case of Handloom only vs. Commissioner of Customs, reported in 2014 307 ELT 106 (Delhi), wherein, it was held that this decision is not an authority that in every case,where the order achieved finality, the Tribunal is bereft of jurisdiction. 9.4. It is contended by the learned counsel for the appellant that restoration of appeal which was dismissed for non-compliance of the stay order by the Tribunal does amount to review and Tribunal has power and jurisdiction to recall its order, in the ends of justice, as required in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is hedged in by the requirement to make pre-deposit as directed by the appellate authority, as being a condition for hearing of the appeal on merits. However, that condition cannot be used by the appellate authority for the purposes of denying an appellant the right of adjudication which is otherwise statutorily granted. In a given case, even if no pre-deposit is made, the appeal may not be heard, but having dismissed the appeal for non-compliance of pre-deposit does not permit the appellate authority to refuse to restore the appeal upon compliance being shown. (iii) Commissioner of Customs Central Excise, Goa vs. Pankaj Jaju (2014 (313) ELT 5 (Bom.)) As it has been held by the Apex Court in the case of J.K.Synthetics Ltd. (supra), under Rule 41, the CESTAT has wide powers to prevent abuse of its process and to secure the ends of justice. As such, though the application was filed under Rule 20, it will have to be held that jurisdiction exercised by the learned Tribunal was under Rule 41 of the said Rules. Apart from that, the similar view has been taken by the Division Bench of Gujarat High Court in the aforesaid three matters, stating therein that in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t deprive the substantive right of the party to prefer the appeal on the mere ground that there is violation of procedure. Therefore, the order of the Tribunal, dismissing the restoration application and the order dismissing the appeal itself are liable to be set aside. 10.2. Considering the claim of availability of merits, the quantum of tax under challenge, and the financial distress pleaded, it is just and necessary that the appellant should be allowed to present her case on merits in the appeal. It is ordered accordingly. 11. In the result: (i) C.M.A.No.158 of 2016 is allowed. Final Order No.40471/2013 dated 22.10.2013 is set aside. (ii) C.M.A.No.159 of 2016 is allowed. Miscellaneous Order No.41071/2014 dated 24.06.2014 is set aside. However, as the condition of pre-deposit has been subsequently complied with, by depositing the balance sum of ₹ 37,00,000/-, no further orders are required in the application for permission to deposit and it is dismissed as infructuous as this stage. (iii) C.M.A.No.97 of 2016 is allowed. Miscellaneous Order No.41282/2015 dated 14.10.2015 is set aside. The application to restore the appeal stands allowed. The appeal by the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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