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TMI Blog2015 (10) TMI 2611X X X X Extracts X X X X X X X X Extracts X X X X ..... erim order of the Tribunal directing pre-deposit and accordingly, refused to modify the order of the Tribunal save and except granted further time of 8 weeks for making the pre-deposit from the date of their order. The time granted by the Hon'ble High Court expired on 12-6-2014 by which date the appellant had not made the pre-deposit and as a consequence, this Tribunal, in view of the non-compliance, dismissed the appeals vide order dated 17-7-2014. 2. The Counsel for the applicant, Shri V.S. Sejpal, submits that the appellant was required to make a pre-deposit for a total sum of Rs. 16.5 lakhs as directed by this Tribunal. But the same could not be made due to financial difficulty and the petitioner, who is a Chartered Accountant in practice, was unable to practice his profession during the period July, 2010 to 9-9-2013 due to suspension of his certificate of practice by the Institute of Chartered Accountant of India (ICAI). A case of professional misconduct was investigated by ICAI. The ICAI vide its order dated 9-9-2013 lifted the suspension. It is further stated that the applicant is a resident of Ludhiana (Punjab) and have to regularly travel to Delhi and Mumbai with res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched the Hon'ble High Court in Writ Petition. The Hon'ble High Court admitted the appeal on the question of law being : - (a) Whether in the facts and circumstances of the case, the Appellate Tribunal was justified in dismissing the misc. application for restoration of appeal without considering the fact that the appellant had deposited the requisite amount in compliance of the pre-deposit order? (b) Whether in facts and circumstances of the case the Appellate Tribunal was justified in rejecting the miscellaneous application for restoration of appeal of the appellant despite the fact the statute does not lay down any time limit for restoration of appeal? The Hon'ble High Court observed that Tribunal should have rendered substantial justice by giving an opportunity to the appellant as the appellant had furnished a DD for the pre-deposit to the Commissioner of Customs. By imposing suitable conditions, the appeal should have been restored to its file for disposal on merits in accordance with law. In view of the fact that the appellant before the Hon'ble High Court had already made a pre-deposit, the appeal was directed to be restored ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would get confirmed without consideration of issues on merits, the Court taking relaxed view of belated compliance of requirement of pre-deposit The Hon'ble High Court also relied on its earlier order in the case of Hussein Haji Harun v. Union of India - 1995 (77) E.L.T. 803 (Guj.), wherein the Division Bench of High Court has observed that when the appeal is dismissed for non-compliance of the condition of pre-deposit, the appellate authority has power to consider the restoration of appeal. Mere absence of a specific provision permitting such restoration would not be a bar. Accordingly, the Hon'ble High Court had restored the appeal. Thus, the learned Counsel urges vehemently for restoration of the appeals. 3. The learned AR vehemently argued that the doctrine of merger would apply. The Hon'ble Bombay High Court, vide its order-in-appeal preferred by the applicant had extended the time for making pre-deposit within which the applicant had failed to make the deposit, resulting into dismissal of the appeal by Tribunal. Restoration of the appeal by the Tribunal would amount to extension of time granted by the Hon'ble High Court. The learned AR further relies on the ruling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsive powers of granting special leave to appeal or rejection thereof in the discretion of this Court. Article 136 does not confer a right to appeal, it confers only a right to apply for special leave to appeal, which taking all facts and circumstances into consideration may be granted or rejected. Even in a case where special leave application is rejected, the order of the High Court does not merge in the order of this Court, as is the case while exercising the appellate power. Similarly when Special Leave Petition is entertained against any final or interlocutory order this Court does not convert itself in a Court of appeal. It was said in the case of Gian Chand v. Kunjbeharilal [1977 (3) SCC 317] by Chandrachud, J. (as he was then) : "With regard to the first submission it may be pointed out that an application for special leave under Article 136 of the Constitution against a judgment or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law. It is an extraordinary right conferred under the Constitution, within the discretion of this Court, and such an application for special leave does not come within the contemplation of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... final hearing in due course. (Pronounced in Court on ................) Sd/- (Anil Choudhary) Member (Judicial) 13-4-2015 [Per : P.S. Pruthi, Member (T)]. - 6. I have seen the order recorded by my ld. Brother. As I have a different view in the matter, I am recording a separate order. 7. I have seen the findings of ld. Brother at Para 4 on Page 8. There is no need to repeat the facts. The issue which merits consideration is whether the Tribunal can allow restoration of the appeal when the time limit for making pre-deposit was specified by the High Court in its Order dated 17-4-2014 and there has been violation of this Order. According to me, the question is not whether the litigation including that before the Hon'ble High Court was on merits. The point is that the High Court had granted time up to 12-6-2014 to make the pre-deposit. But the appellant made the pre-deposit 6 and ½ months later, that is, on 29-1-2015. 8. I have seen the Hon'ble High Court of Gujarat decision in the case of Priya Dyers (supra). In this case the High Court referred to the judgment of the Delhi High Court in Lindt Exports (supra) which held that the Tribunal would be rendered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Tribunal is not taking away the assessee's right of appeal. But the Tribunal ought to respect the time limit given by the High Court for pre-deposit. If Tribunal ignores the directions of the High Court it may not only lead to chaos but would also amount to judicial indiscipline. This is the clear understanding from the judgment in the case of Lindt Exports wherein the High Court held that "Doctrine of merger, therefore, shall clearly apply and once the order of the Tribunal had attained finality and had been merged in the order of this Court, the Tribunal had become functus officio and had no jurisdiction to entertain the applications preferred for restoration of appeals." 8.1 Reliance is also placed on the CESTAT Order in the case of Shimnit Kiwalite Industries Ltd. v. Commr. of Cus. (Import), Mumbai - 2010 (262) E.L.T. 577 = 2011 (23) S.T.R. 206 (Tribunal) holding that "Where the Hon'ble Supreme Court stipulated a period for deposit of an amount by the appellant they ought to have complied with the direction of the Hon'ble Supreme Court. Where the appellant made the deposit belatedly, it was open to them to move the Hon'ble Supreme Court for condonation of the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io and has no jurisdiction to entertain the application for restoration of appeal when the condition of pre-deposit by 12-6-2014 is violated by the appellant. 12. Ld. counsel appearing on behalf of the appellant would draw my attention to the points raised in the difference of opinion. He would submit that the appellant has paid the entire amount of pre-deposit as ordered by the Tribunal and takes me through the dates and events of the issue involved. He would submit that the Hon'ble High Court of Bombay has only extended the time for depositing the amount and having not deposited the amount within the extended period, the appeal was dismissed by the Tribunal and after depositing the same, they are before the Tribunal in an application filed for restoration of appeal. He would submit that the ratio of the Apex Court in the case of Kunhayammed v. State of Kerala - 2001 (129) E.L.T. 11 (S.C.) will be directly applicable inasmuch as the Tribunal has the power to recall its order of dismissal of the appeal for non-compliance and the Doctrine of merger will not apply in this case. It is his further submission that the Doctrine of merger as held by the Apex Court is not a doctrine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-compliance of the stay order passed by the Tribunal and restore the appeal to its original number or otherwise. 16. It is undisputed that the appellant was directed to deposit some amount within a specified period in order to hear and dispose the appeals on merits. Aggrieved by such an order, appellant preferred an appeal before the Hon'ble High Court in Customs Appeal No. 39 of 2014 and Ors. The Hon'ble High Court has dismissed the same but on request of the counsel extended time for invoking pre-deposit it from eight weeks to sixteen weeks. Appellant did not comply with the pre-deposit as directed by the Tribunal within the extended period as has been directed by the Hon'ble High Court and subsequently had complied with the direction of pre-deposit after the appeal has been dismissed by the Tribunal by an order dated 17-7-2014. To be precise the appellant deposited the amount of Rs. 16,50,000/- on 29-1-2015, i.e. approx., after six months from the date of dismissal of the appeal by the Tribunal for non-compliance of the order of pre-deposit and the time extended by the Hon'ble High Court. 17. On such a background, it is to be seen what was the order of the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making pre-deposit, from Tribunal. 19.1 My this above view is fortified by the judgment of Hon'ble High Court of Bombay in the case of Sarda Agro Oils Ltd. v. U.O.I. - 2015 (323) E.L.T. 475 (Bom.) wherein the Lordship in Para 3 held as under : - "3. We have noted this statement in the affidavit in reply. The law on the point is very clear. When there is Court's order and which directs the Authority like the Commissioner of Customs to decide the case within a particular time frame, then, it is his bounden duty to adhere to it. If there are any difficulties in following and abiding by the schedule prescribed in the Court's order, then, appropriate applications have to be made seeking extension of time and the Court must be apprised of all developments and difficulties, it is when the Court extends time, then, the matter can be decided within that extended period, else all such authorities are aware of the consequences of not complying with the Court's order and in time. They could be visited with personal costs and consequences such as entering displeasure of this Court in their service record." It can be noted that their lordships were very clear that any difficulty ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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