2024 (9) TMI 1263

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....by it has allowed the restoration of appeal after the respondent (appellant therein) has complied with the condition of pre-deposit. 2. Learned counsel, Mr. Sourabh Goel, submits that the Tribunal has erred in restoring the appeal. He submits that vide stay order dated 04.06.2012, the respondent was asked by the CESTAT, Principal Bench, New Delhi to make a pre-deposit of Rs. 3.30 crores as a condition for hearing of their appeal against the order passed by the Commissioner of Customs and Excise whereby the Commissioner had confirmed the demands of duties and imposed penalties as against the company as well as its directors. The CESTAT had, after considering the submissions raised by both the parties, directed the respondent-company to de....

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....ESTAT, after considering the case of Kirtikumar Jawaharlal Shah vs. UOI-2014 (304) ELT 641 (SC) and the decision of the Tribunal in S.B. Packaging Ltd. vs. CCE 2019 (370) ELT 552, condoned the delay in filing application for restoration of appeal as the amount of Rs.4 crores was deposited as a pre-deposit. 6. Learned counsel appearing for the Revenue submits that once the High Court in writ petition had upheld the order of dismissal of appeals, there was no reason to allow the restoration of the said appeal on the basis of interim order dated 04.06.2012. 7. Learned counsel has relied on judgments in Commissioner of Customs vs. Lindt Exports, 2012 (278) ELT 587 Del, Lindt Exports vs. Commissioner, 2013 (9) TMI 1102 SC, Picaso Overseas ....

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....n be said to become functus officio only after it decides any appeal on merits. If the appeal has been only dismissed on account of being defective, i.e. due to lack of pre-deposit, it means that the appeal has not been entertained, and therefore such an appeal would have to be treated as lying dormant. While the factum of appeal having been filed would remain on record, since it was not taken up to be heard before the condition of pre-deposit being fulfilled, we cannot say that the Tribunal has become functus officio, and it would have the jurisdiction to hear the appeal on merits. In fact, the appeal filed by the appellant would be treated to be a stillborn, and it would only become alive after the pre-deposit is made. 12. In this case....