TMI Blog2006 (2) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 prejudice to the revenue, in absence of any stay operating in favour of the petitioner. It cannot be lost sight of that right of appeal is statutorily granted and it is hedged in by the requirement to make pre-deposit as directed by the appellate authority, as being a condition for hearing of the appeal on merits. However, that condition cannot be used 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and disposal today. Rule. Mr. Malkan is directed to waive service. 3. For the period from 22-1-1995 to 1-9-1995, by Order in Original dated 30-10-2000, the excise duty liability to the tune of Rs. 3,90,363/- was fastened on the petitioner with equal amount of penalty on the petitioner firm coupled with personal penalties on the partners of the firm. The said order came to be challenged by way of appeal accompanied by an application seeking stay. It is the case of the petitioner that a copy of Order in Appeal was handed over personally by an officer of the Central Excise Department sometime in August 2005 at their new premises. That, after filing the appeal, the petitioner firm had moved and hence, possibly the order directing pre-deposit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ening such a case. 5. Upon issuance of notice, respondents have put in appearance and filed affidavit in reply dated 21st February 2006. The same stand is reiterated in the affidavit in reply, namely, what has been stated in communication dated 20-1-2006. Mr. Malkan submitted that the Court must ensure that the amount of pre-deposit is made within a reasonable period from the date of dismissal of the appeal, even if such a course was permissible, because otherwise, according to him, the period of limitation for preferring an appeal to a higher forum would lose its sanctity. It was also urged that any person may seek restoration within period of limitation prescribed for filing further appeal, as that could be termed to be a reasonable perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed for non-deposit of the penalty amount or duty demanded cannot be construed on the basis that the Tribunal had no power to restore the appeal, which was dismissed for non-deposit of the penalty amount or duty demanded. 8. After referring to the Apex Court decision in case of Collector, Land Acquisition, Anantnag v. Ms. Katijui, 1987 (28) E.L.T. 185 (S.C.), it was laid down, when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred . 9. Repelling the contention that restoration of the appeal would amount to reviewing the earlier order of dismissal, it was laid down, It is not possible to regard the order of dismissal on the ground that penalty amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efuse to restore the appeal upon compliance being shown. 11. In these circumstances, the two communications dated 10-1-2006 (Annexure E ) and dated 20-1-2006 (Annexure G ) are hereby quashed and set aside. In the circumstances, the Commissioner (Appeals) is directed to hear and decide afresh the Miscellaneous Application for restoration of appeal in accordance with law after giving reasonable opportunity of hearing to the petitioner. 12. Considering the fact that the entire litigation has emanated because of the fault of the petitioner in not intimating the change of address in appropriate time, it would be just and proper that the petitioner be visited with costs which are quantified at a sum of Rs. 2,500/- (Rupees two thousand five hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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