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2016 (3) TMI 1112 - AT - Central ExciseRestoration of appeal - seeking recall of CESTAT order - COD application was available on the date of dismissal of its appeal but was not brought to the notice of CESTAT - Held that:- it is evident from the said CESTAT order itself that CESTAT had granted liberty to the appellant to apply for restoration of appeal on production of necessary clearance from the COD and had not set any time limit for doing so. Thus, there is force in the contention of the appellant that the appeal should be restored as the clearance from COD has been produced. We have perused the COD clearances and find that it clearly states that ‘only on the penalty aspect the appellant may approach CESTAT’. Thus the appeal cannot be ordered to be restored except for the penalty aspect. As regards the contention of Reveue that unacceptably long time has elapsed since the appeal was dismissed, we may observe that CESTAT in its order dated 28.08.2006 did not set any time limit to seek restoration of appeal on production of COD clearance. Therefore, in the light of the specific provision in the impugned order, the restoration of appeal can be permitted only on production of necessary clearance from the COD and, by necessary implication, only to the extent it has been cleared by the COD. Hence the restoration of appeal is allowed only in relation to penalty . Waiver of pre-deposit - Held that:- it is found that the entire amount of duty stands deposited and appropriated vide the impugned order in original. Thus, the appellant has a good case for complete waiver of pre deposit of penalty and we order accordingly staying recovery of the same during the pendency of the appeal. - ROA and stay application disposed of
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