2017 (8) TMI 1153

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....ingam, AC (AR), For the respondent ORDER Per: Sulekha Beevi The above application has been filed by the applicant/assessee seeking restoration of appeal. 2. The main appeal was dismissed by the Tribunal for non-compliance of pre-deposit ordered under Section 35F of the Central Excise Act, 1944, vide Final Order No.40856/2014 dated 27.11.2014. It is submitted by the Ld. Counsel, Shri M.N. Bhara....

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....sit. 3. Against this, Ld. AR, strongly opposes the applications. He argued that after dismissal of appeal by the Tribunal for noncompliance of pre-deposit under Section 35F of the Central Excise Act, 1944, the Tribunal has become functus officio and the only remedy available to the appellant is to approach the Hon'ble High Court. He also adverted to the facts of the case and submitted that ag....

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....or non-compliance of pre-deposit. The applicant contends that the delay was due to financial hardship. In such circumstances, the appellant ought to have sought for extension of time for making the pre-deposit. Once the appeal has been dismissed for non-compliance, as rightly argued by the Ld. AR, the Tribunal becomes functus officio. The applicant/assesse cannot choose the time to comply with the....

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.... deposit made not during pendency of appeal, but after dismissing the same. Again, it cannot be considered as delay at all for the reason that the deposit is made after the dismissal of the appeal. At the most, in a case where the delay is nominal or the delay was for the reason that appellant/counsel could not report the compliance on the date when the Tribunal had dismissed the appeal for non-co....