2014 (11) TMI 538

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....iew of the fact that the appellants had never accepted the order of the Tribunal in respect of demand of pre-deposit of Rs. 10 lacs and had agitated the matter upto the Hon'ble Supreme Court, the Tribunal ought to have restored the appeals and decided the same on merits upon deposit of Rs. 10 lacs made by the appellants on 23.1.2013 after dismissal of the SLP on 3.1.2013. 2. Whether, in absence of merger of the order of the Tribunal upon the dismissal of the SLP in limine by the Supreme Court on 3.1.2013, the Tribunal could have refused to exercise its jurisdiction to restore the appeal upon pre-deposit of Rs. 10 lacs. 3. Whether, at any rate, the order dated 8.4.2013 results in complete miscarriage of justice inasmuch as the appe....

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....en the appeal stood dismissed and, the special leave petition also having been dismissed, the Tribunal would have no jurisdiction to allow restoration. In this regard reliance was placed on the judgment of the Delhi High Court in Commissioner of Customs v. Lindt Exports 2012 (28) STR 216 (Del.), where it was held that once the order of the Tribunal had merged with the High Court's order and had attained finality, the Tribunal had no jurisdiction to entertain the application for restoration of the appeal. Learned senior counsel appearing on behalf of the appellants has relied upon two decisions of the Gujarat High Court in Hussein Haji Harun v. Union of India 1995 (77) ELT 803 (Guj.) and Priya Dyers v. Commissioner of Central Exc....

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....issed on 9-10-2007. Doctrine of merger, therefore, shall clearly apply and once the order of the Tribunal had attained finality and had been merged in the order of this Court, the Tribunal had become functus officio and had no jurisdiction to entertain the applications preferred for restoration of appeals." The judgment of the Gujarat High Court in Hussein Haji Harun (supra) involved a situation where an order of pre-deposit was passed by the Tribunal. The assessee could not make the deposit following which the appeal was dismissed by the Tribunal under Section 129-E of the Customs Act, 1962. No appeal was filed to the High Court against the order on the application for waiver of pre-deposit. Thereafter a miscellaneous application was fi....

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.... The Gujarat High Court held that the consistent view has been that the right of appeal is sacrosanct and should not be taken away lightly and hence, though the requirement of pre-deposit was fulfilled though belatedly, in a substantive appeal, the Court was not without jurisdiction to allow such an application. In our view, having considered both sets of judgments, we are inclined to follow the judgment of the Delhi High Court. The earlier view of the Gujarat High Court in Hussein Haji Harun (supra) involved a situation where the Tribunal had been moved with an application for restoration without (as in the present case) a substantive appeal having been filed before the High Court. Once a substantive appeal has been filed before the Hig....