2019 (1) TMI 318

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.... Excise and Services Tax Tribunal, East Regional Bench, Kolkata by its order dated 3rd September 2013 directed the appellant company ("the appellant") to pay 50% of the duty within eight weeks of communication of the order. Upon payment of this 50% duty recovery of the dues against the appellant would stand stayed. This 50% amount was Rs. 42,87,107/-. For whatever reason the appellant was unable to pay the amount or did not pay it. It applied to the tribunal for review or variation of its order. On 25th November 2013 this prayer was refused and the appeal was dismissed on the ground of failure of the appellant to make the predeposit. The appellant approached this Court by way of an appeal which was disposed of on 4th September 2015 by....

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....would appear from the admitted records of the respondent department that a little higher than Rs. 42,87,107/- and to be more specific Rs. 42,88,000/- was lying with the Department on account of his client. Even if it is said that the time limit to comply with the order of the Supreme Court was over and that this Court had no jurisdiction to extend the time, it was always open to the appellant to comply with the order of the tribunal directing predeposit. In fact, by this application the appellant was asking the department to effect the said compliance by adjusting the above amount lying in deposit with them against their dues to the Department. We have examined the Division Bench decision of the Gujarat High Court in 'Scan Computer Co....

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....tion of their dues pending hearing of the appeal. We agree with such submission. We think that an order dismissing an appeal on the ground of failure of the appellant to make the pre-deposit is like dismissal of an appeal for non-prosecution. It is never on merits. Like the Court has the power to restore a suit dismissed for non-prosecution, the Court enjoys similar powers to restore such appeals. The appellant made a miscellaneous application before the tribunal to hear out the appeal. This application was dismissed on 12th November, 2018, the tribunal advancing the reason it had become functus officio in the matter. Under those circumstances, we stay the garnishee order dated 13th September, 2018 read with the corrigendum dated 1....