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2006 (2) TMI 189 - HC - Central ExciseRight of adjudication - Restoration of appeal - dismissed the appeal for non-compliance of pre-deposit - HELD THAT:- Applying the Apex Court decision in case of Collector, Land Acquisition, Anantnag v. Ms. Katijui, [1988 (3) TMI 87 - HIGH COURT OF GUJARAT], it is apparent that 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. It cannot be lost sight of that right of appeal is statutorily granted and it is hedged in by the requirement to make pre-deposit as directed by the appellate authority, as being a condition for hearing of the appeal on merits. However, that condition cannot be used by the appellate authority for the purposes of denying an appellant the right of adjudication which is otherwise statutorily granted. In a given case, 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. Thus, the two communications dated 10-1-2006 (Annexure "E") and dated 20-1-2006 (Annexure "G") are hereby quashed and set aside. Considering the fact that the entire litigation has emanated because of the fault of the petitioner in not intimating the change of address in appropriate time, it would be just and proper that the petitioner be visited with costs which are quantified at a sum.
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