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2015 (3) TMI 817 - HC - CustomsRestoration of appeal - Appeal dismissed for non compliance of pre deposit order - Whether the CESTAT is justified in dismissing the Appeal of the Appellant only on failure to pre-deposit and without considering on merits for nonest order passed by the adjudicating authority without jurisdiction? - Held that:- even in matters of application seeking stay and waiver of the condition of predeposit, the Tribunal must apply its mind. The Tribunal must take into consideration relevant and germane tests particularly whether a prima facie and arguable case is made out and if there is any financial hardship and whether that aspect has been pleaded and sufficiently proved. Thus, the rights of the parties and their equities have to be balanced. - Tribunal must ensure that it gets adequate time to take up the Appeals and for final disposal, so that the parties and lower authorities are guided not only in terms of interpretation and exposition of law by the Tribunal's final orders and for application to given facts and circumstances. That is equally the duty of the Tribunal as a last fact finding authority and while supervising the subordinate authorities. Tribunal has referred to the conflicting views and opinions of different High Courts. It has also referred to several conflicting decisions and orders of its own and chose to analyse each of them and while deciding an interlocutory application. This is really uncalled for. - Assessee has been completely nonsuited because of its failure to comply with the condition of predeposit of ₹ 1 crore , we are of the view that this Appeal deserves to be allowed partly. If the Appellant before us deposits a sum of ₹ 30 lacs within a period of 6 weeks from today, the Tribunal shall restore the Appeal to its file and decide it on its own merits and in accordance with law, uninfluenced by any tentative and prima facie findings. - Decided conditionally in favour of assessee.
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