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2014 (12) TMI 645 - DELHI HIGH COURTRestoration of appeal - Dismissal of appeal by Tribunal - Non compliance of pre deposit order - Did the Tribunal fall into error in declining to restore the appeal dismissed on 1-11-2006 for non-compliance of the previous conditional stay of pre-deposit order - Held that:- Post facto approval to the appellant to receive the amount, was concededly given much later, in 2013. Immediately on becoming aware of the same, an application was moved before the Tribunal to have the appeal restored. It is evident that the receipt of remittances and more importantly the extension of time were factors entirely beyond the appellant’s control. Undoubtedly, the order dated 2-1-2007 passed by the Tribunal achieved finality; at the same time we are of the opinion that in the facts of the case the Tribunal did not cease to have any discretion in the matter and having taken into account these facts could have restored the appeal given that the post facto approval in respect of almost 90% of the amount in question was received in 2013. We are also of the opinion that Lindt Export (2011 (9) TMI 609 - DELHI HIGH COURT) 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 answered in favour of the appellant and against the Revenue. - Appeal restored.
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