2005 (1) TMI 158

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.... the order, which the appellants could not comply with on account of financial difficulties. They also could not comply with the order of pre-deposit within the extended period by 31-12-2001. Further, extension was denied by the Bench order dated 11-2-2002 stating that the appeal stood dismissed on account of non-compliance. The Ld. Advocate states that the appellants have subsequently made a pre-deposit of Rs. 50 Lakhs during the period from 25-9-2004 to 7-12-2004. He also states that the appellants have a good case on merits, which was not considered by the Commissioner (Appeals) for their failure to make a pre-deposit of 50% of the duty and penalty before him and therefore, on the ground of the subsequent pre-deposits made, he prays for ....

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....ts, the appeal should be heard on merits in the interest of justice. 3.On the other hand, Shri Sanjay Singhal, Ld. JDR submits that there has been inordinate delay in making the pre-deposit. He also cites a number of decisions where restoration was not allowed on account of such delay :- (i)         Supreme Industries Ltd. v. Commr. of C. Ex, Mumbai - 2003 (161) E.L.T. 678 (Tri- Del.) (ii)        Ashok Pharmaceuticals v. Commr. of Customs, Mumbai - 2001 (133) E.L.T. 451 (Tri. - Mumbai) (iii)       Rathi Graphics Technology Ltd. v. Commr. of C.Ex, Jaipur - 2002 (148) E.L.T. 1166 (Tri. - Del.) (iv)    &nb....

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....ration has been allowed, in one case it has been allowed subject to payment of the full amount and in some cases, restoration has not been allowed holding the delay in making pre-deposit to be unreasonable. We, therefore, conclude that each case of delayed pre-deposit is to be considered on merits and that there are no absolute guidelines available from the cases decided earlier. 6.Claim to the effect that the appellants are not financially sound is also supported by the fact that the department has not been able to recover the duty and penalty amounts during the long period intervening between dismissal of the appeal and subsequently voluntary pre-deposit by the appellants and filing of the restoration application. The non-recovery was ....