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TMI Blog2018 (11) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... iance with application for modification before the Tribunal, or before the Hon'ble High Court, would have been a proper demonstration of bonafides. In Kirtikumar Jawarharlal Shah v. Union of India [2014 (9) TMI 244 - SUPREME COURT OF INDIA] the failure to diligently prosecute the appeal, evident from the casual manner of filing the application, was held to invalidate the right to appeal. That, too, is apparent in the present application which was not only filed after the period prescribed in law but also failed the test of diligence in seeking condonation when they did so. There is no justification for restoration of the appeal that had been dismissed for non-compliance - Application for restoration of appeal is dismissed. - APPLICA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pre-deposit following which this application is preferred. 3. It was stated that, along with the appeal, an application for condonation of delay had also been made but had not been listed for want of rectification of deficiency; in the meanwhile, their appeal had been dismissed at the threshold for failure to comply with the prescribed pre-deposit. Learned Counsel draws attention to the decision of the Tribunal in TN Mulani v. Commissioner of Central Excise, Mumbai-I 92010 (260) ELT 455 (Tri-Mumbai)]. 4. Learned Authorised Representative contends that, in the circumstances of the appeal before the Hon'ble High Court against the dismissal by the Tribunal, having been dismissed, the present compliance with the pre-deposit pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining duty of more than ₹ 3 crores and penalty of the same amount. Thereafter, the modification application was allowed on 24-7-2001 on the assurance given by the learned counsel for the petitioners that they will furnish bank guarantee of ₹ 25 lakhs within two weeks. But the assurance was breached and further 10 days time was asked for, which was not granted by the CEGAT and that modification application and the main appeal were dismissed by an order dated 17-8-2001 (Annexure-F). Thereafter, after lapse of considerable time they approached this court in 2002 by way of writ petition and though two weeks time was granted to furnish the bank guarantee by the Division Bench of this court on 3-3-2003, the same was not furnished by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can Computer Consultancy had restored the appeal before the Commissioner of Central Excise (Appeals) by referring to the decision of the Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag vs. Mrs. Katiji [1987 (28) ELT 185 (SC)=(1987) 2 SCC 107] to hold that when substantial justice and technical consideration are pitted against each other, cause of substantial justice is to be preferred and it was held that such restoration does not amount to review of the earlier order of dismissal. The ratio that emerges from the decision in re TN Mulani is that, except when circumstances of each case, considered on its own, brings forth such justifiability as to overwhelmingly discard any technical lapse, recall of an order is tantam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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