TMI Blog2019 (2) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. This appeal is allowed and the order passed by the Tribunal is set aside and the appeal is restored to the file of the Tribunal and to be heard and decided on merits. - C.M.A. No. 1762 of 2018 And C.M.P. No.13629 of 2018 - - - Dated:- 5-2-2019 - Mr. Justice T.S. Sivagnanam And Mrs. Justice V. Bhavani Subbaroyan For the Appellant : M/s.Kanthivisalakshi for Mr.S.Yeshwanth For the Respondent : Mr.Rajnish Pathiyil JUDGMENT T.S.SIVAGNANAM, J. This Civil Miscellaneous Appeal filed under Section 35G of the Central Excise Act, 1994 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 12.12.2014, directed the appellant to deposit the sum of ₹ 6,00,000/- within six weeks and report compliance on 13.01.2015. 4. When the case was listed subsequently, the counsel who appeared for the assessee reported no instructions from his client are given about pre-deposit, the authorised representative of the Department submitted that there is no compliance report, consequently appeals stood dismissed for want of compliance under Section 35F of the Act. The assessee filed petition for restoration and as there was a delay, the assessee prayed for condonation of delay and restoration of this appeal and this application was dismissed by the Tribunal vide impugned order as Tribunal has no jurisdiction as it would becom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws and their implementation. It has been said, even in the ancient texts while describing the taxing power of the king, the political sovereign, that a good king is he who draws in the form of taxes from the subjects only as much as a bee draws honey from a flower so that the sustenance of the flower is not endangered. 9.4. It is contended by the learned counsel for the appellant that restoration of appeal which was dismissed for non-compliance of the stay order by the Tribunal does amount to review and Tribunal has power and jurisdiction to recall its order, in the ends of justice, as required in terms of Rules 20 and 41 of CESTAT (Procedure) Rules, 1982. The said Rules is reproduced hereunder:- (i) Rule 20 - Action on appeal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause while dismissing the appeal on the ground of non-deposit of the amount, the Tribunal did not determine any issue or dispute and so there was no question of reviewing the earlier decision in the present case. It is not possible to regard such order of dismissal as a final order. (ii) Scan Computer Consultancy Vs. Union of India (2006 (204) E.L.T. 43 (Guj)) Needless to state that, by mere default in making deposit as directed, the appellant does not stand to gain anything and only delays his right to have his case adjudicated. Nor does such a delay in making pre-deposit cause any justice prejudice to the revenue, in absence of any stay operating in favour of the appellant. It cannot be lost sight of that right of appeal is statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol Pvt. Ltd. vs. CC, Kandla (2006 (198) ELT 547 (Tri Mum)) While allowing the application filed for restoration of appeal following the judgment of the Apex Court in the case of Inventa Electronics Pvt. Ltd. as reported at 2004 (168) ELT A121 (SC), it was observed that since right to appeal is a statutory right and pre-deposit requirement under Section 129E are only in nature of procedural requirements therefore for delay in meeting the pre-deposit requirement, the primary right of appeal cannot be extinguished. 10. From the decisions relied upon by the learned counsel for the Assessee, it is clear that it is not for the Tribunal to state that the Tribunal has no jurisdiction to hear it, but it has no jurisdiction to refuse to hear it, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the order of the Tribunal, dismissing the restoration application and the order dismissing the appeal itself are liable to be set aside. 7. It is submitted by M/s.Kanthivisalakshi for Mr.S.Yashwanth, learned counsel for the appellant that the pre-deposit ordered by the Tribunal has been subsequently complied with by the appellant on 11.03.2016 though belatedly. By applying the decision in the case of Classic Builders (Madras) Pvt. Ltd. Vs. CESTAT, Chennai [reported in 2016(42) S.T.R.668(Mad)] the substantial questions of law have to be answered in favour of the appellant/assessee. 8. For the aforementioned reasons, this appeal is allowed and the order passed by the Tribunal is set aside and the appeal is restored to the file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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