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TMI Blog2018 (4) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Hon'ble Apex Court is that of the statutory right of the appeal should not be defeated. Thus, as the applicant has complied with the direction of the Tribunal for pre-deposit. In the circumstances merit and statutory right of the appeal should not be defeated for other circumstances. Appeal restored to its original number. - Application No. E/ROA/49/2016 Appeal No. E/42/2004 - Misc Order No. 60122/2018 - Dated:- 13-3-2018 - Mr. Ashok Jindal, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) B.L. Narsimhan, Advocate present for the Appellants Shri G.M. Sharma, DR present for the Respondents ORDER 1. The appellant has filed an application for restoration of appeal. 2. The facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed. Against the said order, the applicant filed an Appeal before the Hon'ble High Court. On 27/05/2006, the Hon'ble High Court dismissed the appeal on 30/01/2007. Against the said order, the applicant filed an SLP before the Hon'ble Apex Court which was dismissed on 12/07/2007. Thereafter, BIFR sanctioned the scheme for revival of the applicant wherein it was requested this Tribunal to restore the appeal and the same may be heard on merit without insisting for pre-deposit and exempted the applicant from payment of demands as per the impugned order. 4. Thereafter, a Writ Petition was filed before the Hon'ble High Court of Punjab Haryana, the Writ Petition was dismissed on 26/09/2005. On 05/12/2005, the applicant app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of Handloom Only - 2014 (307) ELT 106 (Del). 6. On the other hand Ld. AR submits that the decision of the Hon'ble High Court of Gujarat in the case of Jai Bharat Steel Co 2014 (305) ELT 240 (Guj) to say the application for restoration of appeal is to be dismissed, which has been affirmed by the Hon'ble Apex Court reported in 2015 (320) ELT 805 (SC). 7. Heard both sides and perused the records. 8. The sole issue is that whether the said circumstances of the case, the appeal can be restored or not. Ld. AR relied on the decision in the case of Jai Bharat Steel Co (supra). In the case of Jai Bharat Steel Co. the appeal filed by the appellant against the order of dismissal of their appeal on account of pre- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for recovery are readily available. Further, by making such pre-deposits the petitioners are not seeking stay of recovery but are praying for permission to pursue their right of appeal. Such right of the appeal flowing from statutory remedy is essential right of the petitioner. It of course is hedged by requirement of pre-deposit as may be imposed by the competent Court. Nevertheless, at this stage, the petitioners are willing to deposit a sizable sum towards the pre deposit only for purpose of entertaining the appeals on merits. We are of the opinion that by mere afflux of time, the offer should not be turned down. 7. We make it clear that in the present case, looking to the special facts, as also looking to the sizable amount involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most 90% of the amount in question was received in 2013. We are also of the opinion that Lindt Export (supra) is not an authority for the blanket order that in every case where the order achieved finality the Tribunal is bereft of jurisdiction. We also note that in that case the assessee/appellant had approached this Court feeling aggrieved by the CESTAT order after its appeal met with no success. The assessee carried the matter to Supreme Court, which had rejected its claim. Further more, the order was premised upon entirely different set of circumstances - the adjudicating authority in that case had held that the claim itself was bogus. In view of the above discussion, we are of the opinion that the substantial question of law has to be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsthan (supra) has observed that the order itself that the said order shall not be treated as precedence in any other case but the ratio of the said order is required to be follows by the courts below. The main thrust of the Hon'ble Apex Court is that of the statutory right of the appeal should not be defeated. Therefore, we hold that as the applicant has complied with the direction of the Tribunal for pre-deposit. In the circumstances merit and statutory right of the appeal should not be defeated for other circumstances. 12. In view of the above analysis, we recall our order dismissing the appeal for non-compliance of the condition of pre-deposit and restore the appeal to its original number. Registry is directed to list the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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