TaxTMI 
TaxTMI 
2006 (2) TMI 189
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....eal No. 152/2005 (Ahd-I)CE/Comr (A-II) dated 16-8-2005 (Annexure "B") for the reasons that follow hereinafter, it is not necessary to deal with the said prayer. 2. The controversy between the parties stands concluded by a decision of this Court in the case of Hussain Haji Harun alias Hussain Kabiju v. Union of India, AIR 1988 Gujarat 218 and hence, it is not necessary to set out the facts and contentions in detail. For the same reason, the petition is taken up for final hearing and disposal today. Rule. Mr. Malkan is directed to waive service. 3. For the period from 22-1-1995 to 1-9-1995, by Order in Original dated 30-10-2000, the excise duty liability to the tune of Rs. 3,90,363/- was fastened on the petitioner with equal amount of p....
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....-2004 made by Commissioner (Appeals) in case of another assessee, wherein appeal was restored, by drawing a distinction to the effect that, in the said case, an amount was pre-deposited within ten days from the date of issue of the order dismissing the appeal, whereas in the present case, the petitioner had deposited the amount on 28-12-2005, which was after the lapse of the appeal period of 3 months for filing appeal to the higher appellate forum. That there is no legal basis for re-opening such a case. 5. Upon issuance of notice, respondents have put in appearance and filed affidavit in reply dated 21st February 2006. The same stand is reiterated in the affidavit in reply, namely, what has been stated in communication dated 20-1-2006. ....
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....987. Therefore, it is apparent that more than a period of two years had elapsed since the order directing pre-deposit and also dismissal of the appeal. 7. In the aforesaid backdrop of facts, this Court, while dealing with the contention that the rules did not permit Tribunal to restore the appeal in a case where appeal was dismissed for default in relation to non-deposit of the amount as directed, laid down, "The mere absence of 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 on the basis that the Tribunal had no power to restore the appeal, which was dismissed for non-deposit of the penalty amount or duty demanded." 8. After refer....
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....it is hedged in by the requirement to make pre-deposit as directed by the appellate authority, as being a condition for hearing of the appeal on merits. However, that condition cannot be used by the appellate authority for the purposes of denying an appellant the right of adjudication which is otherwise statutorily granted. In a given case, even if no pre-deposit is made, the appeal may not be heard, but having dismissed the appeal for non-compliance of pre-deposit does not permit the appellate authority to refuse to restore the appeal upon compliance being shown. 11. In these circumstances, the two communications dated 10-1-2006 (Annexure "E") and dated 20-1-2006 (Annexure "G") are hereby quashed and set aside. In the circumstances, the....