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TMI Blog2014 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... rected that as the Commissioner (Appeals) has not decided the appeal on merits, the Commissioner (Appeals) would decide both the appeals on merits after offering reasonable opportunity to the applicant. 2. The applicant filed the present miscellaneous applications for direction to Commissioner (Appeals) to decide their appeals as they have deposited Rs. 15,000/- on 23-6-2005 in terms of Final Order No. 605/2005 and 606/2005, dated 10-3-2005. In addition to that, the applicant filed application for Restoration of Appeal (ROA) in so far as, there was a delay of 63 days to deposit Rs. 15,000/- and to file compliance before Commissioner (Appeals) in terms of Tribunal's Final Order No. 606/2005, dated 10-3-2005. As the common issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia reported in 2006 (204) E.L.T. 43 (Guj.) = 2008 (12) S.T.R. 108 (Guj.). 4. On the other hand, the learned Authorised Representative for the Revenue submits that the Tribunal has no jurisdiction to recall the final order, dated 10-3-2005, where it was directed that failure to deposit as per direction, the appeals shall stand dismissed. He relied upon the decision of the Hon'ble Madras High Court in the case of V. Ramakrishna Rao v. Commissioner of Customs, Chennai reported in 2011 (267) E.L.T. 293 (Mad.) = 2012 (25) S.T.R. 395 (Mad.). He further submits that the Hon'ble Gujarat High Court in the case of Vibha Fluid Systems Engineering Pvt. Ltd v. Union of India reported in 2013 (287) E.L.T. 29 (Guj.) held that pre-deposit order was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit on the capital goods or they have taken the credit in respect of inputs received after 180 days from the job worker. As the learned Consultant has offered no satisfactory explanation, we direct the applicants to deposit a sum of Rs. 15,000/- only within six weeks from today. On complying with the direction, there shall be waiver of pre-deposit of remaining amount of duty and penalty and recovery thereof shall remain stayed during the pendency of the appeal. The applicants are directed to submit the compliance report to the Commissioner (Appeals) on 4-5-2005. As the Commissioner (Appeals) has not decided the matters on merit, both the appeals are remanded to the Commissioner (Appeals) for deciding the same on merit after offering reasona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived, 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. We have noted that after filing earlier application for further direction, the applicant deposited the amount of Rs. 15,000/- on 23-6-2005, as directed by the Tribunal but there was a delay of 63 days due to financial crisis. The Hon'ble Guj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g its earlier final order." 10. Applying the aforesaid ratio to the facts of the case, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineering Pvt. Ltd. (supra), where the application for restoration of the appeal was filed after delay of more than 5 ½ years. In the case of V. Ramakrishna Rao (supra), the Tribunal rejected the appeals for non-compliance of stay orders. In that case, the appellants filed applications before the Tribunal to recall the final order and the stay order as well as to modify the stay order for granting full waiver of pre-deposit of dues. In that context, the Hon'ble Madras High Court held that the Tribunal has no power to recall the final order. In the case of Nanumal Glass Works (supra) it has been observed that the order was passed in the presence of learned Counsel of the assessee, which shall be treated as communication of order to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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