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TMI Blog2022 (1) TMI 1455X X X X Extracts X X X X X X X X Extracts X X X X ..... e stay order 04.06.2012, the Registry is directed to restore the appeal to its Original number. As this appeal pertains to the year 2010, the registry is directed to list the appeal for final disposal on 06.01.2022. - HON BLE MR. ASHOK JINDAL, MEMBER (JUDICIAL) AND HON BLE MR.C.J. MATHEW, MEMBER (TECHNICAL) For the Appellant : Mr. Sudhir Malhotra, Advocate For the Respondent : Mr. M.S. Dhindsa, Authorized Representative ORDER PER ASHOK JINDAL: The applicant has filed an application for restoration of appeal along with an application of condonation of delay in filing the application for restoration of appeal. 2. The facts of the case are that as per the stay order dated 04.06.2012, the applicant was asked to make a pre deposit of Rs. 3.3 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Kirtikumar Jawaharlal Shah Vs. UOI- 2014 (304) ELT 641 (SC) the order of this Tribunal can be modified and the application for restoration of appeal be allowed, he also relied on the decision of the Tribunal in the case of S.B. Packaging Ltd Vs. CCE 2019 (370) ELT 552, Tribunal Chandigarh and also relied on the CBEC circular no. 85/2002-C dated 11.12.2002 to say that as the decision of the Hon ble High Court is not on merits and therefore the said decision is not binding. 4. On the other hand, Ld. AR heavily relied on the decision of the Hon ble Apex court in the case of Commissioner of Customs Vs. Lindt Exports 2012 (278) ELT 587 (Del.) to say that the order of this Tribunal has merged with the decision of the Hon ble High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation and dismiss their application on condonation of delay as same is filed beyond more than 450 days and no wisper has been mentioned in the order on merits, whether the appellant is required to make pre deposit or not? In that circumstances, relying on the decision of the Hon ble Supreme Court in the case of Kirtikumar Jawaharlal Shah (Supra) and the decision of this Tribunal in the case of S.B. Packaging Ltd (Supra) wherein this Tribunal observed as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther properties for recovery are readily available. Further, by making such pre-deposits the petitioners are not seeking stay of recovery but are paying 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 amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... almost 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 hat case the assessee/appellant had approached this Court feeling aggrieved by the CESTAT order after its appeal met with success. The assessee carried matter to Supreme Court, which had rejected its claim. Furthermore, 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 answered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order shall not be treated as precedence in any other case but the ratio of the said order is required to be [followed] by the Courts below. The man 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 appeal in due course for final hearing. 7. We find that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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