TMI Blog2015 (10) TMI 2611X X X X Extracts X X X X X X X X Extracts X X X X ..... ad to chaos but would also amount to judicial indiscipline. The Tribunal has become functus officio and has no jurisdiction to entertain the application for restoration of appeal in view of the clear violation of the Hon’ble High Court Order to make the pre-deposit by 12-6-2014. Appeal dismissed. - C/1131-1135/2012-Mum - Misc. Order Nos. M/4842-4845/2015-WZB/CB, dated 29-10-2015, Misc. Order Nos. M/4837-4841/2015-WZB/CB, dated 8-10-2015 and Misc. Order No. M/4124/2015-WZB/CB, dated 22-7-2015 - Dated:- 29-10-2015 - Shri Anil Choudhary, Member (J) and P.S. Pruthi, Member (T) Third Member on Reference : Shri M.V. Ravindran, Member (J) Majority Order : Shri Ramesh Nair, Member (J) and P.S. Pruthi, Member (T) Shri V.S. Sejpal, Advocate, for the Appellant. Shri V.K. Agarwal, Additional Commissioner (AR), for the Respondent. ORDER [Order per : Anil Choudhary, Member (J)]. - The applicant, Shri Rakesh Kumar, has filed these miscellaneous applications for restoration of 5 appeals in question, which were dismissed for not making the pre-deposit ordered by this Tribunal vide order dated 4-12-2013, against which the appellant had preferred Customs Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat doctrine of merger will not apply. Firstly, as the Hon ble High Court have not passed any order on merits against the interim order of this Tribunal and have only extended time for making pre-deposit. Secondly, in case of interim orders, there is no finality of appeal, as neither the appeal has been heard and disposed of on the merits nor the Hon ble High Court made any observation on merits of the matter. Doctrine of merger is neither a doctrine of constitutional law nor a doctrine recognized. It is a common law doctrine founded on principles of propriety on the hierarchy of justice delivery 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 this 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-deposit and appeared in the Court with the copy of the Demand Draft for the pre-deposit amount, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t entertain the restoration applications. At that stage, the appellant have approached the High Court once again in Tax Appeal. The Hon ble High 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 v. M/s. Lindt Exports - 2012 (278) E.L.T. 587 = 2012 (28) S.T.R. 216 (Del.), wherein the Hon ble High Court has taken a view that the Tribunal would be rendered functus officio upon the High Court dismissing the appeal and, therefore, any application for restoration before the Tribunal would not be maintainable. The Hon ble Gujarat High Court further took notice of the fact that the assessee in the case of Lindt Exports, had approached for restoration after a period of about four years, disagreeing and distinguishing the ruling of the Hon ble Delhi High Court, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned DR further relies on the ruling of the Hon ble Apex Court in the case of Hari Singh v. State of Haryana - 1993 (66) E.L.T. 23 (S.C.), wherein the Hon ble Supreme Court considered the distinction between scope of SLP, Doctrine of merger of orders in case of SLP, vis- -vis the appeal. The Apex Court have observed in Paras 10 to 12 of its order as follows : - 10. It is true 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 before any such principle is applied it must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the co-accused amounts to a judgment or an affirmness of the findings of the High Court, about the manner of the occurrence, participation of the different accused persons and the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appeal was dismissed by the Tribunal. As such, there is no consideration of merits either by this Tribunal or by the Hon ble High Court. We agree with the observation of the Hon ble Bombay High Court and the Hon ble Gujarat High Court that the right to appeal is sacrosanct and where the delayed compliance of pre-deposit/interim order is explained sufficiently, the appeals needs to be restored in the interest of justice for a decision on merits of the case. Time and again the Hon 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is judgment is that, in the present case before us, even though the appeal should be heard on merits but its restoration can be allowed only by the High Court. 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 v. 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 specific provision permitting such restoration would not be a bar. In my considered view all that this judgment is stating is that the appeal may be restored on compliance of the condition of pre-deposit. But the case at hand is that the Hon ble High Court of Bombay had ordered pre-deposit to be made by 12-6-2014. And the appellant did not fulfil the condition laid down by the High Court. In these circumstances it is beyond the Tribunal s jurisdiction to restore the appeal in view of clear date given by the High Court. The Tribunal cannot go be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (Technical) DIFFERENCE OF OPINION In view of the difference of opinion between Member (Judicial) and Member (Technical), the matter may be placed before the Hon ble President to nominate Third Member to resolve the difference of opinion on the following point : - Whether the Tribunal has jurisdiction to restore the appeal of the appellant despite the violation of High Court s order to make pre-deposit before 12-6-2014 as held by Hon ble Member (Judicial) OR Whether the Doctrine of merger applies, the Tribunal has become functus officio and has no jurisdiction to entertain the application for restoration of appeal when the condition of pre-deposit by 12-6-2014 is violated by the appellant. (Pronounced in Court on 22-7-2015) Sd/- (P.S. Pruthi) Member (Technical) Sd/- (Anil Choudhary) Member (Judicial) 11. [Per : M.V. Ravindran, Member (J)]. - This difference of opinion is listed before me as per the directions of the Hon ble President to decide the following issue : Whether the Tribunal has jurisdiction to restore the appeal of the appellant despite the violation of High Court s order to make pre-deposit before 12-6-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to recall its order, if ends of justice require, such course of action. It is his prayer that the application of restoration of appeal be allowed. 13. Ld. Departmental Representative on the other hand, would submit that the appellant has not complied with the pre-deposit as per the time granted by the Hon ble High Court of Bombay. It is his submission that it was for the appellant to adhere to the time period given by the Hon ble High Court and should have approached the Hon ble High Court for extending the period for pre-depositing the amount as directed by the Tribunal. He would submit that Hon ble High Court of Gujarat in Jai Bharat Steel - 2014 (305) E.L.T. 240 (Guj.) has distinguished the judgment of the same High Court in the case of Priya Dyers (supra) and Hussain Haji Harun (supra) to hold that after dismissal of the appeal, any amount if deposited cannot be considered as compliance of the stay order. He submitted that the said judgment was taken in appeal before the Apex Court and the Apex Court has dismissed the special leave petition. 14. I have considered the submission made at length by both sides and perused the record. 15. The issue involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon ble High Court; the argument put forth by the ld. counsel proposing that the doctrine of merger will not apply in this case as Lordships had only extended the time; is incorrect as it can be seen that the appeal filed by the appellant against the stay order has been dismissed. Any order of dismissal of the Higher Court either summarily or by speaking order is an order in which the order appealed against is merged and the Doctrine of merger applies emphatically. 19. Considering the entire issue from another angle, if the Tribunal accepts the amount deposited by the appellant after the extended period, as granted by the Hon ble High Court, and restores the appeal, it would be viewed by Hon ble High Court and the same can be called in question by Hon ble High Court, as contempt of the direction given by them. In my view, the Superior Court has after dismissing the appeal in interest of justice, extended the period for pre-deposit ordered by Tribunal, having not been complied, by the appellant, the Tribunal has no powers to extend the period and accept the amount deposited as substantial compliance of the stay order. It was for the appellant to approach the Hon ble High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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