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2018 (5) TMI 1836 - HC - Service TaxCondonation of delay in making pre-deposit - Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 - application for restoration of appeal - Held that:- In the present case also, the order dated 28-1-2008 was passed directing the appellant to deposit 50% of the tax demand. Compliance was mandatory. Against the stay order dated 28-1-2008, the appellant filed writ petition No. 3673/2008 before this Court and the same was dismissed on 10-7-2008 while granting further 8 weeks’ time to make the pre-deposit as directed by the Tribunal and they were granted further extension of time of six weeks vide order dated 9-9-2008 to make the pre-deposit. However, the appellant did not deposit the amount, rather it moved a modification application before this Court which was dismissed as withdrawn vide order dated 24-11-2008. Thereafter, the appellant moved the modification application before the Tribunal which was dismissed on 17-3-2009. Against the said order, the appellant filed an appeal on 6-5-2009 before the Supreme Court - During the pendency of the appeal before the Supreme Court, the Tribunal vide order dated 8-5-2009 dismissed the appeals of the appellant for failing to comply with its order dated 28-1-2008. After that, the appeal before the Supreme Court was dismissed in default on 13-7-2009, in consequence whereof, the aforesaid orders had somewhat merged into the order of the Supreme Court. The appellant woke up from its slumber after 51/2 years and deposited the amount on 20-3-2015 in both the cases and moved applications in July, 2016 before the Tribunal to recall its dismissal in default’s order dated 8-5-2009 - There is virtually no explanation or sufficient cause for not complying with the orders dated 8-5-2009, 28-1-2008 and during the extended period granted vide order dated 9-9-2008, for almost 6 years. The conduct of the appellant again demonstrates lack of bona fides on their part. Delay in deposit of 5 1/2 years is substantial. Thereafter, they did not move any application for almost 16 months to recall the final order dated 8-5-2009 of Tribunal after the deposit of the part of the amount on 20-3-2015. There has been unexplained delay in depositing the amount and not moving the applications within the stipulated time. The delay of almost 6 years in depositing the amount and thereafter, delay of 16 months of moving an application before the Tribunal cannot be condoned on vague assertions. Restoration of appeal - Held that:- Whether the appellant has a very good case or not, mere recoveries/deposit of amount after years cannot allow a party to move an application for the restoration of the appeal. Such a conduct cannot be permitted for maintaining the judicial discipline. The delay is condonable when sufficient cause is shown. Explanation should be from the last day of limitation. Appellant must show diligence and bona fides and not inaction or negligence. Condoning such delays would make the proceedings interminable and would legalize injustice. Compliance of orders and time limit is the norm and mandate. If a party comes with a plea which shows its inaction, casual approach as well as its lack of bona fide, then its claim must be rejected - Mere payment cannot result in restoration of appeal by moving an application where there has been an unexplained delay. There is no reason to interfere with the orders of the Tribunal dated 11-4-2017 dismissing the applications of the appellant to restore the appeals - appeals dismissed.
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