Case for Commissioner(A) to be given Power for Restoration of Appeal
THE CESTAT is clothed with express powers under rule 41 of the CESTAT (Procedure) Rules, 1982 to restore appeals that were dismissed inter alia on ground of non-appearance or on account of non-compliance of the order of pre-deposit.
The said rule 41 is reproduced below -
"RULE 41. Orders and directions in certain cases. - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice."
Incidentally, the Commissioner(Appeals) does not have this power and hence if an appeal is dismissed by the lower appellate authority on the aforesaid grounds, an appellant has to file an appeal before the CESTAT and wait for a decision.
In the present case, the appellant complied with the Stay order passed by the Commissioner(A) inasmuch as he paid the pre-deposit amount as ordered but the same was not communicated to the Commissioner (Appeals). Resultantly, the lower appellate authority dismissed their appeal. An application moved for restoration of the appeal was also dismissed citing that there were no powers available to the Commissioner(A).
Before the CESTAT, the appellant cited the previously mentioned facts and the Bench set aside the order of the Commissioner(A) dismissing the appeal. However, considering the submission made by the appellant, the matter was remanded to the adjudicating authority for causing verification of the records and passing of an order.