TMI Blog2014 (12) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. 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. - Commissioner (Appeals) is directed to hear and decide afresh the Miscellaneous Application for restoration of appeal in accordance with law after giving reasonable opportunity of hearing to the petitioner. - Following decision of Scan Computer Consultancy [2006 (2) TMI 189 - HIGH COURT OF GUJARAT AT AHMEDABAD] - Matter remanded back - Appeal restored. - E/324 & 325/2004-DB - Misc. Order Nos. 40425-40428/2014 - Dated:- 16-1-2014 - Shri Pradip Kumar Das, Member (J) and Mathew John, Member (T) Shri G. Rajagopalan, Sr. Advocate and Niranjan Gopalan, Advocate, for the Appellant. Shri P. Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals as per Final Order dated 10-3-2005. He relied upon the decision of the Hon ble Gujarat High Court in the case of Scan Computer Consultancy v. Union of India 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 not complied within time and no application for extension of time was filed and deposit was made by the assessee at its own turn, application for restoration of appeal was rightly rejected. He also relied upon the decision of the Hon ble Allahabad High Court in the case of Nanumal Glass Works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h direction to deposit the amount and to report before Commissioner (Appeals). It is seen that the applicant deposited ₹ 15,000/- on 23-6-2005 and by letter dated 29-7-2005 informed the Tribunal for placing the matter before the Bench. There is a note of the CESTAT Registry on 29-7-2013 in the applicants letter dated 29-7-2005 that Valuable Register Sl. No. 1181, dated 29-7-2005 vide CB DD. 667204, dated 24-7-2005 but not yet numbered. . On a query from the Bench, the learned Counsel submits that no further order was passed by the Commissioner (Appeals) after the CESTAT Final Order dated 10-3-2005. On perusal of the letter dated 29-7-2005, we find that the applicant filed application on 9-5-2005 and deposited the appropriate fees for filing the miscellaneous application before the Tribunal, which was not numbered and also not placed before the Bench. 7. It is seen that the applicant filed the application for extension of time to deposit the amount and to report compliance before Commissioner (Appeals) as soon as final order of the Tribunal was received, which was not numbered and also not placed before the Bench. It appears that the applicant filed the present application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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. 11. In these circumstances, the two communications dated 10-1-2006 (Annexure E ) and dated 20-1-2006 (Annexure G ) are hereby quashed and set aside. In the circumstances, the Commissioner (Appeals) is directed to hea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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