TMI Blog2012 (11) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... absence of a positive provision authorising the Tribunal to restore such an appeal – appeal restored. - C/311/2006 - M/1994/2011-WZB/AHD - Dated:- 16-11-2011 - Shri M.V. Ravindran, Dr. P. Babu, JJ. REPRESENTED BY : Shri Anand Nainawati, Advocate, for the Appellant. Shri J.S. Negi, A.R., for the Respondent. [Order per : M.V. Ravindran, Member (J)]. This application for restoration of appeal is filed by the applicant for restoration of the appeal No. C/311-313/06. 2. The relevant facts that arise for consideration that the appellant had moved Tribunal in appeal Nos. C/311-313/06 and also filed stay petitions for the waiver of the pre-deposit of the amounts involved. The Tribunal vide stay order No. S/309-314/WZB/06.C.I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit that the appeal was dismissed for non compliance almost four years back and frequent applications were made by the assessee for restoration of the appeals which were also dismissed for non compliance. It is his submission that the appellant had approached this Tribunal almost after five years for restoration though the appellant has deposited the amount as indicated in the application. He would submit that the applicant s application for restoration of appeal need not be considered by the Tribunal. 5. On careful consideration of the submissions made by both the sides and perusal of the records and we find that the facts are not in dispute. It is a fact that the applicant s appeal was dismissed for non compliance and the last applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g appeals against the orders passed by the Collector (Appeals) rejecting the appeal for non-deposit of the penalty amount; that such orders of the Collector (Appeals) are treated as orders made under Sec. 128A; that in such appeals the Tribunal has jurisdiction to entertain appeals which were rejected by the Collector (Appeals) on the ground of non-deposit of the penalty levied or duty demanded; and that if the Tribunal has such jurisdiction then the Tribunal can certainly set aside its orders and restore the appeal rejected by it for non-deposit of the penalty levied or duty demanded, if the circumstances warranted such a course. It cannot be gainsaid that when the Act or the Rules in question do not specifically prohibit restoration of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer to legalize injustice on technical grounds but because it is capable of removing injustices and is expected to do so. The same principles would apply in the present case. It is not possible to regard the order of dismissal on the ground that penalty amount was not deposited in time to be final order. It is also, therefore, not possible to accept the view that restoring such an appeal would amount to reviewing the earlier order of dismissal. The whole fallacy lies in the approach that if such an appeal was to be restored, it would amount to reviewing its earlier final order. The majority view is that the Tribunal will have power to restore an appeal which has been dismissed for default in appearance on sufficient cause being shown in ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set aside. Question No. 2 6. As we have seen, by the order dated 20-12-1985 the said Appeal No. 109 of 1985 was dismissed. Reading the said order, it also becomes clear that the entire appeal was dismissed on the ground that the appellant as well as his Advocate were absent and that there was no intimation of the deposit having been made and further that no cause was also shown for non- deposit and it was in those circumstances that the entire appeal was dismissed. The order does not show that it was appreciated by the learned Members that the appeal that they were dismissing on the ground that the penalty amount was not deposited as directed, as a composite appeal inasmuch as the same was for setting aside the penalty and also f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the order rejecting the restoration application and the order dismissing the above appeal are required to be set aside in the ends of justice. 9. It can be seen from the above reproduced ratio of the Hon ble High Court of Gujarat s judgment that the Tribunal has got power to recall of order which has been passed for dismissal of the appeal for non compliance will not amount to review. In our considered opinion the ratio as reproduced herein above, of the judgment of their lordships squarely covers the issue in favour of the applicant. In view of this, we allow the application for restoration of the appeal and recall our final orders vide which we have dismissed the appeal of the applicants for non compliance. The appeal Nos. C/311-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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