TaxTMI 
TaxTMI 
2016 (3) TMI 1172
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....t was passed on 10-9-2003 directing the appellant to deposit a sum of Rs. 50,000/- out of Rs. 2,62,795/- depositable in terms of the impugned order, and to report compliance by 19-11-2003. As the appellant failed to make deposit and report compliance, the appeal was dismissed for default on the same day. Restoration application was filed on 11-1-2008 (E/ROA/No. 19/08). 2.1 In the other case in Excise A. No. 1285/2003, the order under Section 35F of the Central Excise Act was passed on 8-9-2003. In terms of the said order, the appellant was required to deposit a sum of Rs. 1.00 lakh out of Rs. 3,61,185/- depositable in terms of the impugned order, and to report compliance by 14-11-2003. As the amount was not deposited and compliance wa....
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....s. 3. The ld. Counsel for the appellant states that an order dismissing an appeal for default is not a final order as clarified by Hon'ble Gujarat High Court in the case of M/s. Hussein Haji Harun v. Union of India : 1995 (77) E.L.T. 803 (Guj.), wherein it has been held as under : "5. As noted above, the appeal was dismissed for non-deposit of penalty amount. The question is whether the restoration of such an appeal would amount to reviewing the earlier order. Such an order of dismissal can hardly be regarded as a final order under Sec. 129B(4) of the Customs Act, 1962. The learned Judicial Member has rightly observed in his order that the Tribunal has been entertaining appeals against the orders passed by the Collector (Appeals....
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.... such a provision regarding the situation when an appeal comes to be dismissed for non-deposit of the penalty amount or duty demanded cannot be construed to mean that the Tribunal had no power to restore the appeal, which was dismissed for non-deposit of the penalty amount or duty demand. As observed by the Supreme Court in the case of Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors., 1987 (28) E.L.T. 185 (S.C.), when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. It has further been observed in that case that it must be grasped that judiciary is respected not on account of power to legalize injustice on technical grounds but because it....
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....or some reason the same could not be reported or brought to the notice of the Tribunal before the appeal came to be dismissed on the ground of non-production of proof of deposit of penalty? As per majority view, it would be a helpless situation since they had no power to restore even such an appeal. Such a construction would obviously defeat the ends of justice because it would amount to taking too technical a view of the matter just because there is absence of a positive provision authorising the Tribunal to restore such an appeal. We are, therefore, of the view that the order rejecting the application for restoration of the said appeal requires to be interfered with and required to be set aside." 3.1 The ld. Counsel also relies on t....