Shanmugar Service vs The Commissioner of Central Excise (Appeals)

R. Sudhakar, J.

Heard Mr.M.L.Ramesh, learned counsel for the appellant and Mr.T.Chandrasekaran, learned Standing Counsel, who took notice on behalf of respondents 1 to 3.

These appeals are filed challenging the order dated 24.10.2014 made in Misc. Order No. 41795/2014 in ST/613/2012-DB in ST/ROA/42076/2014 and Misc. Order No. 41796/2014 in ST/685/2012-DB in ST/ROA/42077/2014 respectively by the Central Excise and Service Tax Appellate Tribunal, Chennai, raising the following questions of law:

(i) Whether the Tribunal was right in dismissing the appeal filed by the appellant herein holding that the pre-deposit amount had not been paid?

(ii) Whether the Tribunal was right in dismissing the restoration petition holding that the dismissal of the appeal had become final?

(iii) Whether the Tribunal was right in dismissing the restoration petition without considering the fault committed by the counsel earlier, the party should suffer?

The three questions of law that have been raised cannot be countenanced in view of the conduct of the appellant. However, taking note of the fact that the order of pre-deposit made by the Tribunal has been belatedly complied with in full by the appellant and that the Tribunal has dismissed the applications for restoration of the appeals as it does not have the power to entertain the appeal once the order regarding pre-deposit is not complied with, this Court is inclined to consider the issue whether in a case of this nature, in order to do substantial justice, the Court would interfere with the order of the Tribunal.

At the outset, the appellant''s filing of typed set without proper verification is severely criticized and condemned.

By order dated 30.9.2013, the Tribunal directed the applicant to pre-deposit a sum of Rs. 2,20,000/- each. As the appellant failed to comply with the conditional order of pre-deposit, the appeals were dismissed on 20.11.2013. The applications filed by the appellant for restoration of the appeals stating that the amount has been deposited belatedly came to be dismissed by order dated 24.10.2014 passed in Miscellaneous Order Nos. 41795-41796/2014. Aggrieved by the said order, the present appeals are filed.

In our firm opinion, the Tribunal rightly relied upon the decisions of this Court and various other High Courts to come to the conclusion that when the order of pre-deposit has not been complied with, the Tribunal has no discretion to entertain the appeal. We affirm such a view.

However, yet another aspect which needs consideration in the case on hand is the averment made by the applicant in the affidavit filed before the Tribunal in July, 2014, wherein the reason for the non- compliance of pre-deposit order is attributed to the fault of their former advocate - Mr.Bharathi. It is the specific plea of the appellant that their former counsel - Mr.Bharathi was responsible for not intimating the appellant about the proceedings before the Tribunal and, therefore, the appellant had sought for change of counsel and is pursuing the matter.

From the documents available on record, it is evident that the appellant has been pursing the matter diligently from the adjudication stage and the reason for non-compliance is attributed to the fault of their former advocate - Mr.Bharathi, which is stated in the affidavit of the appellant filed before the Tribunal during July, 2014.

Taking note of the above plea and the bona fides as pleaded by the appellant, we are inclined to interfere with the order of the Tribunal. Since the conditional order has been complied with by the appellants, though belatedly by way of pre-deposit of the entire amount as ordered by the Tribunal, we are inclined to allow the appeals on the following terms:

(i) The order of the Tribunal dismissing the miscellaneous petitions filed for restoration of the appeals is set aside and the restoration applications are allowed by restoring the appeals to the file of the Tribunal;

(ii) The Tribunal is directed to dispose of the appeals on merits.

In the result, these appeals are allowed in the above terms. No costs. Consequently, M.P.No. 1 of 2014 (2 Petitions) are closed.