DIPTI TEXTILES Vs. COMMISSIONER OF CENTRAL EXCISE, SURAT

JUDGEMENT

(1.) VIDE Order Nos. S/676 -678/WZB/AHD/2005/C -III/SM, dated 30 -11 -2005, the appellants were directed to deposit 50% of the duty of Rs. 4,93,890/ - (Rupees Four Lakhs, Ninety Three Thousand, Eight Hundred and Ninety Only) by 31 -12 -2005. Since the appellants failed to deposit the amount and even after giving the 3 adjournments, the appellant could not deposit the amount, the appeals were dismissed vide Order No. A/1079/C -IV/WZB/2006/SMB, dated 3 -7 -2006. Now, the appellants have come with an application for restoration of appeal.

(2.) LD . Consultant on behalf of the appellant submitted that they were facing financial crisis due to closure of business the appellant has a strong case on merit. He says that in identical cases, several decisions have been rendered by Tribunal taking a view that the appellants are eligible for Cenvat credit. He fairly admits that pre -deposit as directed by the Tribunal has not been made till date and only Rs. 1 lakh (Rupees One lakh only) has been deposited.

(3.) I have considered the submissions. I find that the ld. Consultant is arguing case on merit only. But, the issue to be decided first is whether the appeal can be restored when pre -deposit of amount required to be deposited as per Stay Order has not been deposited by filing application for restoration and further whether such restoration application can be filed without any time -limit. In this regard, ld. SDR relied upon 3 decisions of the Tribunal to submit that restoration application is also required to be filed within reasonable time and in the case of Kiritkumar J. Shah v. CCE, Nagpur - 2009 (242) E.L.T. 222 (Tri. -Mum.) = 2011 (22) S.T.R. 246 (Tri. -Mum.), it has been held that in the absence of any specific period of limitation for filing restoration of appeal, application for restoration of appeal has to be filed within a period of 3 months from the date of dismissal. I find that in the case, the appellant was required to deposit amount and report compliance in 5 -10 -2007 and appeal was dismissed for non -compliance on 5 -11 -2007. Restoration application was filed on 25 -5 -2008. Therefore, it can be seen that restoration application in that case had been filed after about 8 months. In this case, restoration application is being filed after 5 years. When there is a decision of the Tribunal refusing to allow restoration application filed after 8 months, such a decision is bound to be followed unless distinguishable.