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2014 (12) TMI 32 - AT - Central ExcisePower of Commissioner (Appeals) for restoration of appeal - Non compliance of pre deposit order - Delay of 63 days to make pre deposit - Availment of credit without filing declaration - Held that:- It is seen that the applicant filed the application for extension of time to deposit the amount and to report compliance before Commissioner (Appeals) as soon as final order of the Tribunal was received, which was not numbered and also not placed before the Bench. It appears that the applicant filed the present applications as the earlier application was not taken up for hearing. It is obligatory on the part of CESTAT, Registry to issue notice and place the application before the Bench, which was not done in the present case. At any event, the applicant should not suffer due to the fault on the part of the Registry. So, the present applications would be treated as part of the earlier application. Commissioner (Appeals) committed an error in law when he came to the conclusion that he could not restore the appeal and the only remedy was by way of preferring appeal before higher forum. Needless to state that, by mere default in making deposit as directed, the appellant does not stand to gain anything and only delays his right to have his case adjudicated. Nor does such a delay in making pre-deposit cause any prejudice to the revenue, in absence of any stay operating in favour of the petitioner. Even if no pre-deposit is made, the appeal may not be heard, but having dismissed the appeal for non-compliance of pre-deposit does not permit the appellate authority to refuse to restore the appeal upon compliance being shown. - Commissioner (Appeals) is directed to hear and decide afresh the Miscellaneous Application for restoration of appeal in accordance with law after giving reasonable opportunity of hearing to the petitioner. - Following decision of Scan Computer Consultancy [2006 (2) TMI 189 - HIGH COURT OF GUJARAT AT AHMEDABAD] - Matter remanded back - Appeal restored.
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