By TIOL News Service

MUMBAI, OCT 01, 2016: THE appeal was dismissed by the CESTAT for non-prosecution. On a restoration application, the Tribunal restored it to file on the condition of deposit of Rs.6 lacs. Since that condition was not complied with, the appeal was dismissed on 24.09.2013.

The appellant is before the High Court.

The High Court extracted the provisions of section 35F of the CEA, 1944,as it stood on the date of dismissal of the appeal,and observed that in the light of the wording of the provision,the Tribunal was not empowered to dismiss the appeal without adjudication on merits.

The impugned order of the Tribunal was set aside to the extent it dismissed the appeal without adjudication on merits.

However, in the matter of pre-deposit ordered, the High Court observed -

"…That condition remains. We do not modify that condition, but we only set aside the direction to dismiss the appeal for non-prosecution or non compliance of the provisions of section 35F of the Central Excise Act, 1944."

While restoring the appeal to the file of the Tribunal for being heard on merits, the High Court added –

"…However, before the tribunal, the assessee/appellant before us cannot have a luxury of litigation without complying with the order of the tribunal on the restoration application. The assessee has never challenged that order nor the condition incorporated therein. In these circumstances, if the appellant/assessee before the tribunal now desires that Appeal No. E-841 of 2012 should be heard on merits and in accordance with law, then, it must deposit a sum of Rs.6lacs within a period of two weeks from today. If that condition is complied with and compliance is reported, the tribunal shall restore the appeal of the assessee to its file and decide it in accordance with law. In the event this condition is not complied with, the tribunal's order stands and the assessee will not have any opportunity of hearing of the appeal on merits."

The appeal was disposed of.

(See 2016-TIOL-2309-HC-MUM-CX )