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M/s Avtar & Company Versus nUnion of India, through Commissioner of Customs, Central Excise & Service Tax, Bhopal

2016 (7) TMI 130 - MADHYA PRADESH HIGH COURT

Restoration of appeal - delayed pre-deposit of amount as directed by the tribunal - Validity of order refusing to restore the order which was dismissed for non-compliance of stay order and for want of prosecution - Held that:- we answer the substantial question by holding that in peculiar facts and circumstances of the case, we are of the considered view, that the learned Tribunal was not right in dismissing the appeal for want of prosecution or non-compliance of the interim order for deposit of .....

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or considering the following substantial question of law: Whether the Tribunal was right in dismissing the appeal filed by the appellant for want of prosecution only on account of the non-compliance with the requirement of pre-deposit as contained in Section 35(c) of the Central Excise Act and the rules of procedure framed therein ? 2. The facts of the case, in brief, are that on 16-9-2008 a show cause notice was issued to the appellant-assessee alleging that it is liable to pay duty on the serv .....

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dated 18-01-2010 the Additional Commissioner rejected the objection and confirmed the demand directing imposition of duty to the extent of ₹ 9,66,670/-. 4. Being aggrieved by the aforesaid order, an appeal was filed by the appellant before the Commissioner (Appeals) along with an application for grant of stay. The appeal was rejected by the Commissioner (Appeals) on 29-6-2012. Thereafter, the appellant preferred an appeal before the Customs, Excise & Service Tax Appellate Tribunal, Ne .....

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2. 6. On 22-11-2013 the appellant filed an application before the learned Appellate Tribunal seeking restoration of the appeal and produced relevant documents evidencing deposit of pre-deposit of ₹ 5 lacs in the application. This application was dismissed for want of prosecution, as none appeared on behalf of the appellant, when the matter was taken up on 6-5-2014. The application, dated 13-6-2014 filed by the appellant for restoration, also faced dismissal by the learned Appellate Tribuna .....

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al is duty-bound to decide the appeal on merits and cannot dismiss the same on account of nonprosecution. It is argued by the learned counsel for the appellant by referring to the aforesaid judgement, the provision of Section 35(C) read with 20 of the Customs Excise Service Tax Appellate Tribunal (Procedure) Rules, 1982 that in the light of the aforesaid judgement, the learned Tribunal committed error in dismissing the appeal and the application seeking restoration for want of prosecution. It is .....

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apil Jain, learned counsel for the appellant has also invited our attention to a Division Bench judgement of the Karnataka High Court rendered in the case of M/s Aditya Horological Ltd. vs. Commissioner vs. Commissioner, 2014 (307) ETL 132, to say that in similar circumstances the Karnataka High Court had restored the appeal and directed the Appellate Tribunal to decide the appeal on merits. Similarly, Shri Jain invited our attention to another judgement of the Supreme Court rendered in the case .....

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of the appellant and argued that in the case of Balaji Steel Re-Rolling Mills (supra) the position was different. In the present case appellant failed to deposit pre-deposit amount, even though adequate time was granted for the same on 12-12-2012 and thereafter when the orders were passed on 24-7-2013, even after a period of more than three months no action was taken by the appellants. Therefore, for the default committed by the appellant, it is not a fit case where appeal should be restored to .....

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m the documents annexed in Annexure-A/7. In this application seeking restoration of the appeal, it indicated that after the orders were passed by the Appellate Tribunal, various financial stringencies were mentioned which prevented the appellant from non-deposit of the requisite pre-deposit amount. Now, as the pre-deposit amount is deposited, the appeal deserves to be be restored to file in its original number. However, after filing of this application when none appeared on behalf of the appella .....

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been filed to show that the counsel so engaged on behalf of the appellant did not inform the appellant about the procedure and queries in that regard were also not properly responded to by him. Even though, subsequently an application for restoration was filed on 13-6-2014, which was also dismissed on 20- 01-2015 on the ground that the appellant has not complied with the orders and no justifiable reason is given for its non-appearance on 6-5- 2014. 13. Even though this case pertains to power av .....

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Sansthan and others (supra) have held that once pre-deposit has been paid, even though belatedly, it does not cause any prejudice to other party, and directions were issued to decide the appeal on merits. 14. Similarly, in the case of Aditya Horological Ltd. (supra) Division Bench of Karnatka High Court has also directed to decide the appeal on merits, once pre-deposit is made good. 15. In the present case, for the lapse on the part of the appellant in depositing the pre-deposit of ₹ 5 lac .....

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ion of the appeal was sought for on 13-6-2013 by the appellant, which also came to be dismissed by the learned Tribunal on 20-01-2015. 16. In the facts and circumstances of the case, we are of the considered view, that the appellant has the right to have its appeal decided on merits on various legal issues, that have been denied by the learned Appellate Tribunal, for non-appearance of the party and nondeposit of pre-deposit amount. 17. On a careful reading of the decisions rendered by the apex C .....

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