TaxTMI 
TaxTMI 
2009 (5) TMI 572
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....ioner had confirmed the duty to the tune of Rs. 7,06,524/- and had also imposed penalty equal to the duty amount against Managing Director and other noticee in the proceedings. Along with those appeals, the appellants had also filed application No. 1433, 1434, 1435 and 1436/2007 which were disposed of on 15-10-07 after hearing the representatives for the parties, and thereby had directed the applicants to deposit sum of Rs. 3,50,000/- within 6 weeks while waiving the other amount demanded under the order in challenge. The matter was then fixed for compliance report on 4-12-07. However, since the applicants failed to comply with the said direction till 8th February, 2008 when the matter was taken up to ascertain about compliance of the said direction, the Tribunal after recording non-compliance of the said direction, dismissed the appeals for non-compliance of provisions of Section 35F of the Central Excise Act, 1944. 4. In the present application, it is a case of the applicants that due to financial crises, they could not deposit the amount in terms of the order dated 15-10-2007 within a period specified under the order. However, they have now deposited the whole amount of ....
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....d by the Tribunal while dealing with the stay matters, it is seen that the said Act does not make any provision in relation to the restoration of appeals, once they are dismissed for default, whether the default refers to appearance of the parties, or default refers to non-compliance of the obligation regarding pre-deposit of the amount demanded in the order which is said to be challenged. However, the Apex Court in the case of Union of India v. Paras Laminates (P) Ltd. reported in 1990 (49) E.L.T. 322 (S.C.) has clearly held that the Tribunal being a judicial body, it has all the incidental and ancillary powers essentially to make fully effective the express grant of statutory powers. Though the Tribunal has limited powers and defined jurisdiction, it has all powers which are expressly and impliedly granted. Obviously, therefore to make the orders passed by the Tribunal effective and meaningful as well as bearing in mind the scope of powers granted to the Tribunal under the said Act and purpose for which the Tribunal has been constituted, the powers of Tribunal would include powers of restoration of appeal in both the cases, either in the case they are dismissed for default on acc....
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....on behalf of the respondents, in the case in hand, it was found necessary to refer to said decisions of the Apex Court and all the above decisions in the matter, in the absence of necessary assistance in that regard from either of the parties. 14. In Scan Computer Consultancy case, the Gujarat High Court held that the Commissioner (Appeals) had committed an error in law when he came to the conclusion that he could not restore the appeal and the only remedy was by way of preferring appeal before the higher forum and that it cannot be lost sight of fact that the 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 a condition for hearing the appeal on merits. However, that condition cannot be used by the appellate authority for the purpose of denying the appellant the right of adjudication which is otherwise statutorily granted. In that view of the matter, the Gujarat High Court held that even if no pre-deposit is made and if the appeal is dismissed for non-compliance with the said requirement regarding pre-deposit, appellate authority cannot refuse to restore the appeal on compliance of th....
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....hed to the satisfaction of CEGAT that there was sufficient cause, CEGAT must set aside the ex parte order, restore the appeal to its file and hear it afresh on merits." Being so, the law on the point about power of the Tribunal to entertain the application for restoration of appeal dismissed for default is well settled. 17. As regards, the decision of the Apex Court in Haryana Wool Industries (supra), apparently, the said decision do not lay down any law as such but it was delivered in peculiar facts of the said case and it is apparent from para 4 of the said order, which reads thus as : "4. In the particular circumstances of the present case, it is not inappropriate to afford one more opportunity to the appellant to have its grievance adjudicated on its merits by the Tribunal." (Emphasis supplied) Besides, the order passed by the Apex Court gave opportunity to the appellant to have adjudication before the Tribunal in relation to the grievances of the appellant on merits. It does not pertain to the power of the Tribunal to deal with the matters relating to restoration of appeal. The Gujarat High Court in S.T. Texturisers (supra) directed the Tribunal to exercise ....