TMI Blog2016 (3) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Anil Choudhary, Member (J) Shri Rajesh Chibber, Advocate, for the Appellant. Shri Pawan Kumar Singh, Superintendent, for the Respondent. ORDER The appellants have preferred these Misc. applications for restoration of their appeals. 2. Briefly stated the facts of the case are that in one of the cases Excise A. No. 1321/2003, the stay order under Section 35F of the Central Excise Act was passed on 10-9-2003 directing the appellant to deposit a sum of ₹ 50,000/- out of ₹ 2,62,795/- depositable in terms of the impugned order, and to report compliance by 19-11-2003. As the appellant failed to make deposit and report compliance, the appeal was dismissed for default on the same day. Restoration application was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Nos. 59516, 59517/2013 on 24-7-2013. This Tribunal vide order dated 3-2-2014 dismissed the restoration application observing that the earlier order dated 31-10-2008, was not an ex parte order and further this Tribunal cannot review its own order. Thereafter, the appellants have filed the present applications on 8-9-2014 and 30th March, 2015, recalling the previous order dated 3-2-2014 and restoration of the appeals. 3. The ld. Counsel for the appellant states that an order dismissing an appeal for default is not a final order as clarified by Hon ble Gujarat High Court in the case of M/s. Hussein Haji Harun v. Union of India : 1995 (77) E.L.T. 803 (Guj.), wherein it has been held as under : 5. As noted above, the appeal was dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iewing the earlier decision in the present case. Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Procedure Rules, 1982 provides for dismissal of the appeal for non-appearance of the appellant on the date of hearing. It is also true that the proviso to the said Rule specifically provides for restoration of the appeal which has been dismissed for default of the appellant. The mere absence of such a provision regarding the situation when an appeal comes to be dismissed for non-deposit of the penalty amount or duty demanded cannot be construed to mean that the Tribunal had no power to restore the appeal, which was dismissed for non-deposit of the penalty amount or duty demand. As observed by the Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s where the amount of penalty has not been paid are not final orders. Such a construction would lead to injustice and would not further the ends of justice. What would happen in a given case where an appeal was dismissed for non-production of proof of deposit of penalty and it turned out in an application for restoration of such an appeal that the amount had already been deposited within the time granted but for some reason the same could not be reported or brought to the notice of the Tribunal before the appeal came to be dismissed on the ground of non-production of proof of deposit of penalty? As per majority view, it would be a helpless situation since they had no power to restore even such an appeal. Such a construction would obviously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier order dated 3-2-2014, and restoration of their appeals under the fact that the whole amount of adjudicated dues including penalty had been adjusted by the Revenue on 26-12-2007 and immediately, thereafter, the appellants had filed restoration applications within a month. Thus, there is no deliberate lapse on the part of the appellants in pursing their appeals. 4. The ld. A.R. for Revenue relies on the impugned order. He further states that in view of the long delay in making the deposit which was finally effected by adjustment by revenue, the should be dismissed. 5. Having considered the rival contentions. I am satisfied that there is mistake of fact in the earlier order dated 3-2-2014, so far as it considered that the Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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