Ex parte dismissal recalled for non-consideration of limitation plea; conditional pre-deposit granted for stay relief.

An ex parte dismissal was recalled because the appellant had not been heard and the limitation plea raised in the appeal memo had not been examined. On the stay application, the Tribunal granted conditional waiver of the remaining duty and entire penalty on a prima facie view of the dispute and limitation, directing a pre-deposit of Rs. 1.50 lakhs within six weeks. The ex parte disposal was therefore set aside, and interim protection was made subject to compliance with the deposit condition.

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Issues: (i) Whether the ex parte final order dismissing the stay petition and appeal required recall. (ii) Whether the appellant was entitled to waiver of pre-deposit of the balance duty and penalty pending disposal of the appeal.

Issue (i): Recall of the ex parte order was sought on the ground that notice of hearing was not received and that the limitation plea raised in the memo of appeal had not been considered.

Analysis: The order dismissing the stay petition and appeal had been passed in the absence of the appellant's representative. The record also showed that the limitation contention had not been examined while rejecting the appeal.

Conclusion: The final order dismissing the stay petition and appeal was recalled.

Issue (ii): Whether the appellant should be directed to make any pre-deposit as a condition for waiver of the remaining duty and penalty.

Analysis: The demand arose from denial of reimbursement expenses, and the appellant relied on the period involved and the existence of conflicting Tribunal decisions to dispute invocation of the longer limitation period. The appellant also accepted that part of the demand fell within limitation.

Conclusion: The appellant was directed to deposit Rs. 1.50 lakhs within six weeks, and on compliance the balance duty and entire penalty were waived.

Final Conclusion: The ex parte dismissal was set aside and interim protection was granted on conditional pre-deposit, with the matter kept for compliance.

Ratio Decidendi: An ex parte disposal that does not consider a material limitation plea may be recalled, and conditional waiver of pre-deposit may be granted based on a prima facie assessment of the dispute and limitation.

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