TMI Blog2017 (3) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... lication for restoration of appeal, which was dismissed by this Tribunal vide Final Order No. 52130/2016 dated 09.06.2016. 2. The Ld. Advocate appearing for the appellant submits that the appellant was suffering serious financial crunch, and as such, did not comply with the stay orders dated 30.11.2015 and 18.03.2016 passed by the Tribunal. He further submits that the appeal cannot be dismissed for want of non-compliance of the stay order and instead, it has to be decided on consideration of the merits of the case. To support such stand, Ld. Advocate has relied on the judgment of Hon'ble Bombay High Court in the case of Top Securities Ltd. Vs CCE ST 2015 (39) STR 964 (Bonn.) and also the order No. MO/51119/2015-ST (Br.) dated 09.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, the present Misc. Application was filed on the ground that appeal cannot be dismissed and same has to be adjudicated on merits, irrespective of non-compliance of the statutory requirement of pre-deposit. 6. We find that the Hon'ble Bombay High Court in the case of Top Security Ltd. (supra) have not discussed the factual aspects involved in the judgment of Hon'ble Supreme Court in the case of Balaji Steel Rerolling Mills vs Commr. 2014 (36) STR 1201 (S.C.). Whereas, the Hon'ble Court in the case of Rajesh H. Arora (supra) upon analysis of the said judgment delivered by the Hon'ble Apex Court have held that the appellant - assessee cannot insist for adjudication of his appeal on merits, where the appeal has been di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision taken or application decided under Section 35F of the Act, the appeal shall be liable to be dismissed. But while dismissing the appeal it shall not be incumbent on the appellate authority to enter into merit of the controversy. The analogy may be drawn from provisions where the appeal is filed after delay without application under Section 5 of Limitation Act. In case the delay is not condoned, then the Court has to dismiss the appeal without entering into the merit of the controversy. In view of the above, though, Section 35F does not provide consequence with regard to non-payment of duty or penalty but the natural consequence will be the dismissal of the appeal without entering into the merit of the controversy. 7. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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