TMI Blog2005 (1) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of financial difficulties. They also could not comply with the order of pre-deposit within the extended period by 31-12-2001. Further, extension was denied by the Bench order dated 11-2-2002 stating that the appeal stood dismissed on account of non-compliance. The Ld. Advocate states that the appellants have subsequently made a pre-deposit of Rs. 50 Lakhs during the period from 25-9-2004 to 7-12-2004. He also states that the appellants have a good case on merits, which was not considered by the Commissioner (Appeals) for their failure to make a pre-deposit of 50% of the duty and penalty before him and therefore, on the ground of the subsequent pre-deposits made, he prays for restoration of the appeals. In support of his contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Industries Ltd. v. Commr. of C. Ex, Mumbai - 2003 (161) E.L.T. 678 (Tri- Del.) (ii) Ashok Pharmaceuticals v. Commr. of Customs, Mumbai - 2001 (133) E.L.T. 451 (Tri. - Mumbai) (iii) Rathi Graphics Technology Ltd. v. Commr. of C.Ex, Jaipur - 2002 (148) E.L.T. 1166 (Tri. - Del.) (iv) Hamsons Steels Alloys Pvt. Ltd. v. Commr. of C.Ex., Hyderabad-II - 2004 (167) E.L.T. 513 (Tri. - Bang.) Shri Sanjay Singhal, Ld. JDR states that in the case of Hamsons Steels, the Tribunal ordered for payment of full amount of pre-deposit as the condition of restoration of appeal. The Ld. Advocate, however, states that on account of adverse financial position, they are not in a position to make any further pre-deposit beyond the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the long period intervening between dismissal of the appeal and subsequently voluntary pre-deposit by the appellants and filing of the restoration application. The non-recovery was surely not on account of any restraint by the Tribunal during this long period. We have also carefully considered the order dated 13-11-2000 passed by the Tribunal. Paragraph 2 of the said orders reads as follows :- "Since the matter lies in a narrow compass we have taken up the appeal themselves for disposal after waiving pre-deposit with the consent of both parties." Subsequently in Paragraph 5 of the same order, the Bench has directed to pay Rs. 50 Lakhs within 12 weeks from the date of receipt of the order. It further goes on to say the following :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvening period except the amount of Rs. 50 Lakhs voluntarily pre-deposited by the appellant, we order the restoration of the impugned five appeals to their original numbers condoning the delay in making the pre-deposit. 9.We are also cf the view that there will be no purpose served by fixing another date for hearing for these five appeals restored above in view of the fact that the lower authority has not passed any order on merits. As such, we set aside the impugned order of the Commissioner (Appeals) with the direction that he shall decide the matter afresh after allowing a reasonable opportunity of hearing to the appellants and without insisting on any further pre-deposit. 10.All the five appeals are allowed by way of remand in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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