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2015 (9) TMI 423 - BOMBAY HIGH COURT

2015 (9) TMI 423 - BOMBAY HIGH COURT - 2016 (41) S.T.R. 24 (Bom.) - Restoration of appeal - Tribunal dismissed the appeals for non-compliance of pre-deposit order - Held that:- We do not think that such litigants deserve sympathy or there should be a premium on their lapses and deficiencies by an order from higher Court granting unconditional restoration of the Appeal and directing the Tribunal to decide the same on merits. It would be a travesty of justice if such an approach is adopted in all .....

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months from today the Appellants report compliance of the conditional stay order dated 16th May, 2013 and produce proof before the Tribunal in that regard, the Tribunal shall decide the Appeal of the Assessees, by restoring it to its file, on merits and in accordance with law. - Decided in favor of assessee. - Central Excise Appeal No. 132 of 2014 , Central Excise Appeal No. 170 of 2014 - Dated:- 31-8-2015 - S. C. Dharmadhikari And B. P. Colabawalia, JJ. For the Petitioner : Mr Bharat Raichanda .....

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the Tribunal could not have nonsuited these Assessees simply because they failed to comply with the condition imposed while granting interim stay. The grant of interim stay during the pendency of the Appeal on terms and conditions and the subsequent non compliance thereof should not visit the Assessees with a drastic order of dismissal of the Appeal without adjudication on merits. There is thus a duty in law to adjudicate on merits irrespective of such noncompliance. Therefore, the restoration a .....

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or the Respondent supports the order of the Tribunal and submits that from a discretionary order of this nature, no substantial question of law will arise. The Appeal of the Appellant/Assessee was dismissed by a self operative order. That self operative order is pursuant to the earlier direction of grant of stay issued on 16th May, 2013. In other words, non compliance with this order and the condition imposed therein results in dismissal of the Appeal without adjudication on merits. This positio .....

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compliance thereof is stated to be 13th November, 2013. 6) Mr. Kantharia therefore would submit that the Appeals do not raise any substantial question of law and should be dismissed. 7) We have perused the memo of Appeals in both these matters. We have also perused the impugned order of the Tribunal and other material forming part of the paper book. We have also perused the statutory provisions brought to our notice and the Judgment of the Hon'ble Supreme Court of India. 8) The principle lai .....

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ed 1/3rd of the same being deposited within six weeks and report compliance by 23rd July, 2013. This is a demand of Service Tax and which stood confirmed. 9) The Appellants did not question this order and there is substance in the contention of Mr. Kantharia that it allowed the time to run and come to an end. The entire compliance was never reported and of a condition imposed voluntarily. The acceptance of the condition being not in issue, all that the Appellants did was to take a chance and app .....

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he issue of the Tribunal's lack of power to dismiss a statutory appeal for want of prosecution in order to get over their lapses and defaults. They do not question the initial conditional order. After the time is over, they make an application for restoration and if that is also disposed of resulting in a conditional order against them, they challenge this order on the restoration application and raise the issue of the Tribunal's lack of power to dismiss the Appeal without any adjudicati .....

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