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2015 (9) TMI 1313 - CESTAT MUMBAI

2015 (9) TMI 1313 - CESTAT MUMBAI - TMI - Restoration of Appeal Non-fulfilment of Pre-deposit condition within time specified Tribunals jurisdiction to restore appeal Difference of opinion Question as to Whether Tribunal has jurisdiction to restore appeal of appellant despite violation of High Court's order to make pre-deposit as held by Hon'ble Member (Judicial), referred to Third Member to resolve difference of opinion. - Application No. C/ROA/92503 to 92507/15, Appeal No. C/1131 to 11 .....

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-43 of 2014. By order dated 17.4.2014, the Hon'ble High Court was of the view that no substantial question of law arise from the interim order of the Tribunal directing pre-deposit and accordingly, refused to modify the order of the Tribunal save and except granted further time of 8 weeks for making the pre-deposit from the date of their order. The time granted by the Hon'ble High Court expired on 12.6.2014 by which date the appellant had not made the pre-deposit and as a consequence, th .....

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tificate of practice by the Institute of Chartered Accountant of India (ICAI). A case of professional misconduct was investigated by ICAI. The ICAI vide its order dated 9.9.2013 lifted the suspension. It is further stated that the applicant is a resident of Ludhiana (Punjab) and have to regularly travel to Delhi and Mumbai with respect to the pending proceedings. In these circumstances, he could not carry out his profession resulting into very meagre income. The applicant also annexed copy of th .....

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er, 2014 and thereafter could manage to make the pre-deposit vide challan dated 29.01.2015. A copy of which is annexed to the application. The applicant after making the pre-deposit as directed earlier, vide order dated 4.12.2013 have approached this Tribunal for restoration of the appeals in the interest of justice. 2.1 As regards the issue of doctrine of merger, the applicant states that doctrine of merger will not apply. Firstly, as the Hon'ble High Court have not passed any order on meri .....

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system. 2.2 The learned Counsel relies on the ruling of the Hon'ble Bombay High Court in case of Customs Appeal No. 96 of 2014 decided by Order dated 17.11.2014, wherein the order passed by the Tribunal dismissing the miscellaneous application (ROA) was challenged. In the said case, as the appellant could not make pre-deposit because of financial hardship, the appeal was dismissed. Thereafter, the applicant had filed restoration application showing willingness to comply the condition of pre .....

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for restoration of appeal without considering the fact that the appellant had deposited the requisite amount in compliance of the pre-deposit order? (b) Whether in facts and circumstances of the case the Appellate Tribunal was justified in rejecting the miscellaneous application for restoration of appeal of the appellant despite the fact the statute does not lay down any time limit for restoration of appeal? The Hon'ble High Court observed that Tribunal should have rendered substantial just .....

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further relies on the ruling of the Hon'ble Gujarat High Court in the case of Priya Dyers Vs. Commissioner of Central Excise - 2014 (305) ELT 504 (Guj), wherein the facts before the Court were that this Tribunal had directed the appellant to make a pre-deposit of ₹ 25 lakhs and after being unsuccessful in the modification application preferred, the appellant approached the High Court in Tax Appeal, which was dismissed. The appellant thereupon preferred SLP before the Hon'ble Supre .....

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not entertain the restoration applications. At that stage, the appellant have approached the High Court once again in Tax Appeal. The Hon'ble Hight Court had opined that the appellants have already made the pre-deposit as insisted upon by the Tribunal on appropriate conditions, their appeal should be heard on merits. The High Court also took notice of the earlier order of the Hon'ble Delhi High Court in the case of Commissioner of Customs Vs. M/s Lindt Exports - 2012 (278) ELT 587, wher .....

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e Hon'ble Gujarat High Court was of the view that the right to appeal is 'sacrosanct' and should not be lightly taken away. Although, such right under the provisions of Central Excise Act is hatched by the requirement of pre-deposit, the statutory right of appeal gets destroyed and the decision adverse to him would get confirmed without consideration of issues on merits, the Court taking relaxed view of belated compliance of requirement of pre-deposit. The Hon'ble High Court also .....

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ges vehemently for restoration of the appeals. 3. The learned AR vehemently argued that the doctrine of merger would apply. The Hon'ble Bombay High Court, vide its order in appeal preferred by the applicant had extended the time for making pre-deposit within which the applicant had failed to make the deposit, resulting into dismissal of the appeal by Tribunal. Restoration of the appeal by the Tribunal would amount to extension of time granted by the Hon'ble High Court. The learned AR fur .....

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le 6 ibid. Appeal to Hon'ble Supreme Court filed by the appellant contending that valuation not to be made under Rule 6 ibid, but under Rule 4(3)(b) ibid. Issue on applicability of Rule 6 ibid attained finality on summary disposal of appeal by Hon'ble Supreme Court in 2003. Dismissal of statutory appeal by Supreme Court though by non-speaking order was passed in exercise of appellate jurisdiction, wherein the merits of order impugned were subjected to judicial scrutiny, the doctrine of m .....

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e that the system of the justice which is being administered by the Courts, one of the basic principles which has to be kept in view, is that Courts of co-ordinate jurisdiction, should have consistent opinions in respect of an identical set of facts or on question of law. If Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy. But befo .....

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tion of this Court. Article 136 does not confer a right to appeal, it confers only a right to apply for special leave to appeal, which taking all facts and circumstances into consideration may be granted or rejected. Even in a case where special leave application is rejected, the Order of the High Court does not merge in the Order of this Court, as is the case while exercising the appellate power. Similarly when Special Leave Petition is entertained against any final or interlocutory order this .....

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the discretion of this Court, and such an application for special leave does not come within the contemplation of appeal pending before the Court under Section 13A(a)." 12. It is a basic principle of the administration of justice that like cases should be decided alike. It is a very sound rule and practice otherwise on same question of law or same set of facts different persons approaching a Court can get different orders. But can the appeal of an accused, who has been granted special leav .....

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cannot be held to fee stare decisis s(c) that it is binding on us. Accordingly, the learned AR prays for dismissal of the restoration application. 4. Having considered the rival contentions and the facts on record, we are of the view that doctrine of merger is not hit in the facts and circumstances of the case. Firstly, the Tribunal had only passed an interim order for pre-deposit, the time of which was extended by the Hon'ble High Court and upon violation of such pre-deposit condition, the .....

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;ble Apex Court has observed that the Courts/Tribunals are respected for the cause of justice and or for rendering justice and not for perpetuating injustice for the sake of procedural reasons. Accordingly, we allow the applications for restoration of appeals and direct the Registry that the appeals be restored to their original file. As the appellant has made the pre-deposit, the evidence of which has been placed on record, the compliance in terms of pre-deposit order dated 4.12.2013 is noted. .....

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of the appeal when the time limit for making pre-deposit was specified by the High Court in its Order dt. 17.4.2014 and there has been violation of this Order. According to me, the question is not whether the litigation including that before the Hon'ble High Court was on merits. The point is that the High Court has granted time up to 12.6.2014 to make the pre-deposit. But the appellant made the pre-deposit 6 and ½ months later, that is, on 29.1.2015. 8. I have seen the Hon'ble Hi .....

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jarat only observed that in the case of Lindt Exports the pre-deposit was made four years later. The High Court held the view that the right of appeal is sacrosanct and should not be taken lightly. The Gujarat High did not distinguish on merits the decision of the Delhi High Court that the Tribunal had become functus officio and had no jurisdiction to entertain the application for restoration of appeals. The Hon'ble High Court of Gujarat observed that "this is not to suggest that the or .....

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In the present case the Order of pre-deposit by 12.6.2014 was violated by the appellant and therefore only the High Court can restore the appeal. Ld. Brother has also referred to the Hon'ble Gujarat High Court judgment in the case of Hussein Haji Harun vs.Union of India (supra) in which it was observed that "when the appeal is dismissed for non-compliance of the condition of pre-deposit, the appellate authority would have power to consider the restoration of appeal. Mere absence of a sp .....

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of clear date given by the High Court. The Tribunal cannot go beyond the directions of the Hon'ble High Court and restore the appeal. It may be emphasized that the Tribunal is not taking away the assessee's right of appeal. But the Tribunal ought to respect the time limit given by the High Court for pre-deposit. If Tribunal ignores the directions of the High Court it may not only lead to chaos but would also amount to judicial indiscipline. This is the clear understanding from the judgme .....

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0 (262) ELT 577 holding that "Where the Hon'ble Supreme Court stipulated a period for deposit of an amount by the appellant they ought to have complied with the direction of the Hon'ble Supreme Court. Where the appellant made the deposit belatedly, it was open to them to move the Hon'ble Supreme Court for condonation of the delay. Neither this Tribunal nor, in our view even the Hon'ble High Court can condone the delay." 8.2 It is also noted in this case that the High Co .....

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