ORDER
Harish Chander, President
1. By the present application, the appellants have made a prayer for restoration of appeal which was dismissed for non-compliance of provisions under Section 35F of the Central Excises and Salt Act, 1944. Shri Raju Ramchandran, the learned advocate with Shri Makarand Adkar, learned advocate has appeared on behalf of the appellants. He reiterated the contentions made in the application for restoration of appeal. He pleaded that the amount has been duly paid at Rs. 4,34,896/- on 2nd August, 1994. He pleaded that the amount could not be deposited within the stipulated period due to financial constraints. He pleaded for the restoration of appeal. Shri B.K. Singh, the learned SDR who is present on behalf of the respondent pleaded that in view of the fact that duty amount has been paid, he has got no objection for the restoration of appeal.
2. We have heard both the sides and have gone through the facts and circumstances of the case. The appellants as a bona fide tax payer have paid the amount at Rs. 4,34,896/- on 2nd August, 1994. Shri B.K. Singh has satisfied himself as to the payment. Since the payment has been made, we are of the view that ends of justice require that the appeal should be restored. Similar issue had come up for hearing before the Tribunal in the case of Khatau Makanji Spg. & Wvg. Co. Ltd. v. Collector of Customs, reported in 1993 (64) E.L.T. 490 (Tribunal). Para No. 2 from the said judgment is reproduced below :-
“2. We have heard both sides and have gone through the facts and circumstances of the case. The appeal was dismissed for non-compliance of the provisions of Section 129E. The Bench had pointed out to the learned Advocate that the present application of the applicants is in respect of restoration of the appeal whereas the appeal was dismissed for non-compliance of Section 129E. The applicants if at all interested in reopening the case, the applicants should have made a prayer for recalling the order. Shri Chandani, the learned Advocate stated that the present application which is termed as Restoration of Appeal may be treated as application for recalling of the order. Shri Sharma, the learned SDR has got no objection to the same. In view of the judgment of the Hon’ble Gujarat High Court in the case of Hussain Haji Harun alias Hussein Kabiju v. UOI and Ors. reported in AIR 1988 Gujarat 218, the Tribunal have powers to recall the earlier order. Accordingly we feel that in the present matter there are sufficient circumstances which meets the recalling of the earlier Order No. 54/89-A, dated 10-2-1989. Accordingly we recall the earlier order dated 10-2-1989. Now coming to the offer of the learned Advocate for the deposit of Rs. 19 lakhs we order that the applicants shall deposit a sum of Rs. 19 lakhs by Thursday the 18th May, 1989 and further order that the applicants shall make a further deposit of Rs. six lakhs on or before 31st May, 1989. The applicants shall report compliance of this order to the Registry for the first payment of Rs. 19 lakhs before 23-5-1989 and for the balance payment of amount of Rs. 6 lakhs they may report compliance by 5-6-1989. In case the applicants fail to comply with the terms of this order the present stay order shall stand automatically vacated and the appeal shall be liable to be dismissed for non-compliance of the provisions of Section 129E of the Customs Act, 1962. The appeal is to come up for mention on 21-6-1989. We further order that during the pendency of the appeal the Revenue Authorities will not pursue recovery proceedings for the balance duty and penalty amount.”
The Tribunal had followed the Hon’ble Gujarat High Court’s decision in the case of Hussain Haji Harun alias Hussein Kabiju v. Union of India and Ors. reported in AIR 1988 Gujarat 218. Extracts from the said judgment are reproduced below :-
“It cannot be gainsaid that when the Act or the Rules do not specifically prohibit restoration of an appeal dismissed on the ground of non-deposit of the penalty amount, the Tribunal certainly has the power and jurisdiction to recall its earlier order, if the ends of justice require such a course of action. It is more so because while dismissing appeal on the ground of non-deposit of the penalty amount, the Tribunal does not determine any issue or dispute and so there is no question of reviewing the earlier decision. Moreover, such order of dismissal is not a final order. Rule 20 provides for dismissal of the appeal for non-appearance of the appellant on the date of hearing. It is also true that the proviso to the said Rule specifically provides for restoration of the appeal which has been dismissed for default of the appellant. 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 to mean that the Tribunal has no power to restore the appeal, which was dismissed for non-deposit of the penalty amount or duty demanded.”
In view of the above discussion, we are of the view that the appellants were prevented by sufficient cause for not making the payment earlier. We set aside the order dismissing the appeal for non-compliance of provisions under Section 35F of the Central Excises and Salt Act, 1944. We restore the appeal to its original number. Shri Raju Ramchandran, the learned advocate made a prayer that when the Stay Order No. E/278/93-B1 dated 15-9-1993 was passed, the pre-deposit of the penalty amount was dispensed with. Since the stay order does not exist, he made an oral prayer that the pre-deposit as ordered by the Bench for the penalty amount at Rs. 50,000/- may be dispensed with. Shri B.K. Singh, the learned SDR does not object to the same. After hearing both the sides, in the interest of justice, we order that dispensing with the pre-deposit of the penalty amount of Rs. 50,000/- shall continue in terms of stay order No. E/278/93-B1 dated 15-9-1993 read with this order. In the result, application for Restoration of Appeal is allowed.