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2018 (7) TMI 1609 - HC - CustomsDismissal of appeal on delayed filing - Service of order not made - pre-deposit condition of filing appeal not complied with - Detention of goods belonging to the petitioner by the Officers of Customs and/or Officers of Central Excise all over India - It is the specific case of the petitioner that on further inquiry from the department, it appears that even the department does not have any proof that the order dated 13th September 2012 is served on the petitioner. Held that:- The right of Appeal is a creature of a statute and legislature is yet within its power to confer such a right subject to stipulation and conditions as long as they are not so onerous so as to amount to be unreasonable restriction on exercise of such right and making it illusory. Since right of Appeal cannot be claimed as an absolute right, it is necessarily to be exercised in the manner in which it can be availed as provided in a statute. Since it is a statutory right, it can be circumscribed by the conditions in its grant - If a statute enumerates certain conditions and provides that only on compliance of certain conditions, the right of Appeal available under the statute can be availed, then it is imperative that those conditions/stipulations must be strictly adhered to and complied with. Section 129 provides conditional right of Appeal in respect of an Appeal against the duty demanded or penalty levied - If the mandate of the statute requires to make pre-deposit of some amount as a condition precedent, entertainment of an appeal by the appellate authority, then, compliance of the said condition is mandatory and we need not dilate on the settled positiion, which is also not disputed by the learned counsel for the petitioner. It is apparent from record that when the petitioner filed an appeal, the address that was tendered was at G.I.D.C, Makapur, Baroda and when the order is passed on 12th September 2012, the said order has been forwarded to the petitioner at the same address i.e. M/s.India Medtronic Pvt. Ltd, 919/2, GIDC Estate, Makarpura, Baroda 390 010, and also to the Willingdon and Associates, Trident 'C' Block, 3rd floor, Opp GERI Compound, Race Course, Vadodara - It is thus clear that the said order which has been passed on 13th September 2012 making the condition of deposit of 50% amount as a condition precedent for hearing of appeal and in absence of which directing its dismissal was never communicated to the petitioner. Thus, the petitioner was never made aware of the fact that the Appeal filed by him resulted into a dismissal on expiry of period of two weeks from 12th September 2012. The interest of justice would be served if the appeal filed by the petitioner is restored to its file and the Commissioner is directed to decide the same on its own merits - appeal restored.
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