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TMI Blog2019 (2) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Tribunal, Chennai and allow the appeal. 2. The appeal has been filed raising the following substantial questions of law: "(i) Whether the Tribunal is right in dismissing the restoration application on the ground that it becomes functus officio once dismissed the appeal for noncompliance of pre-deposit order under Section 35F of the Central Excise Act, 1944 and Section 86 of the Finance Act? (ii) Whether the Tribunal is right when the Act or Rules in question do not prohibit restoration of an appeal, dismissed on the ground of non-deposit of predeposit the Tribunal certainly has power and jurisdiction to recall its order if the ends of justice requires such a course of action? (iii) Whether the Tribunal is right in discriminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellant and Mr.Rajnish Pathiyil, learned counsel for the respondent. 6. The substantial questions of law raised in this appeal has been considered by the Hon'ble Division Bench of this Court in the case of Classic Builders (Madras) Pvt. Ltd. Vs. CESTAT, Chennai [reported in 2016(42) S.T.R.668(Mad)] and the substantial questions of law were answered in favour of the assessee. In the said decision various other decisions were also referred to. At this juncture, it is beneficial to quote the following paragraphs of the judgement: "7. The next issue is what is the interpretation to be given to the expression 'functus officio' with reference to the functioning of the Tribunal. While interpreting the tax law, the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits: Provided that where an appeal has been dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his nonappearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the dismissal and restore the appeal. (ii) Rule 41 - Orders and directions in certain cases: The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. 9.5. Contending that the Tribunal has ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the appellate authority for the purposes of denying an appellant the right of adjudication which is otherwise statutorily granted. In a given case, even if no pre-deposit is made, the appeal may not be heard, but having dismissed the appeal for noncompliance of pre-deposit does not permit the appellate authority to refuse to restore the appeal upon compliance being shown. (iii) Commissioner of Customs & Central Excise, Goa vs. Pankaj Jaju (2014 (313) ELT 5 (Bom.)) As it has been held by the Apex Court in the case of J.K.Synthetics Ltd. (supra), under Rule 41, the CESTAT has wide powers to prevent abuse of its process and to secure the ends of justice. As such, though the application was filed under Rule 20, it will have to be held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal, dismissed on the ground of non-deposit of the amount, the Tribunal certainly has the power and jurisdiction to recall its earlier order, if the ends of justice require such a course of action. (b) When Rule 20 provides for restoration of appeal in case when the appeal is dismissed for default, there is no reason as to why the power of restoration should not be exercised in case of non-compliance with the provision for pre-deposit. (c) even if no pre-deposit is made, the appeal may not be heard, but the dismissal of the appeal for non-compliance of pre-deposit does not permit the appellate authority to refuse to restore the appeal upon compliance being shown. (d) under Rule 41, the CESTAT has wide powers to prevent abuse of i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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