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Bombay High Court has given general direction to Tribunal not to dismiss any appeal for non-compliance, if appeal filed against order directing pre-deposit is pending for admission before High Court, and give reasonable time of about a couple of weeks to the appellant to obtain urgent orders from the Court where the Tribunal is informed of such pending appeal before Court at the admission stage.
Facts:
The Tribunal directed the appellant to pre-deposit 50% amount of duty and part amount of penalty vide order dated 29-10-2013. The appellant filed appeal before Hon’ble Bombay High Court against the said order for hearing the same on merits. While the matter was pending before High Court at admission stage, the appellant communicated the fact to the registry of tribunal by a letter in writing and requested adjournment of hearing of compliance. However, no adjournment was granted and matter was posted for compliance in the regular course. In the course of hearing, the fact of pending appeal before High Court was mentioned before the Tribunal, however Tribunal did not grant any adjournment and dismissed the appeal for non-compliance.
Held:
(i) H on’ble Bombay High Court expressed serious concerns in following words, about Tribunal dismissing the appeal for non-compliance even after bringing to its notice that, appeal was pending at admission stage before High court.
“Before we deal with the merits of the appeal, we are shocked to note that time and again the Tribunal has been dismissing appeals of the appellants for non-compliance with the order of pre-deposit even in cases where the owner directly pre-deposits, the Tribunal is informed about the appeal was listed before this Court for admission…. it is most unfortunate that the Tribunal did not wait for admission hearing of this appeal by this Court…”
(ii) H igh Court also pointed out similar instances on two other occasions and relied upon decisions of another Division Benches in the cases of Jaiprakash Strips Ltd. vs. Union of India 2009 (243) ELT 341 (Bom) and Saswad Mill Sugar Factory Ltd. vs. CCE [2013] 40 taxman.com 504 (Bom) and directed Tribunal as under:
“13. Having regard to the fact that this is the third instance which is brought to our notice where the Tribunal has dismissed an appeal for non-compliance of the said order of the Tribunal in spite of having been informed about the appeal before this Court being on board or it is adjourned to a near date for admission, we direct that henceforth the Tribunal shall not dismiss any appeal for non-compliance on the above ground and give reasonable time of about a couple of weeks to the appellant to obtain urgent orders from this Court where the Tribunal is informed about the appeal pending before this Court at the admission stage. The Tribunal shall at least give the parties 2 weeks time to move this Court for early hearing of the appeal before this Court.”
(iii) A s regards the merits of the case, The High Court refused to go into the merits for the reason that, issues raised were in respect of the factual aspects of the controversy and hence subject matter of the appeal was before the Tribunal. However, as regards order of pre-deposit was concerned, it held that pre-deposit was restricted to 50% of the duty confirmed and the order of pre-deposit was set aside granting interim stay against coercive recovery during pendency of the appeal before the tribunal.
