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Judgment
Thottathil B. Radhakrishnan, J.—Heard learned counsel for the appellant and learned standing counsel for the Department.
This appeal, at the instance of a company is against the decision dismissing the restoration application by the CESTAT.
The appellant''s appeal was considered and a waiver application and a stay application were ordered directing stay of recovery and grant of waiver on condition that the appellant deposits an amount of Rs. 10,00,000/- (Rupees ten lakhs only). Thereafter, since no deposit was made, the appeal was dismissed some time in 2007.
Much after, the appellant filed the application for restoration. We have perused the order of the learned Tribunal which has been succinctly stated that the law is certain that the Tribunal has power to restore the appeal dismissed for non-compliance with the directions contained in the stay order. We do not find our way to disturb that finding. While it may be true that the appellant had not taken due steps to prosecute the appeal after it was dismissed for default, such situation was also during the period while the company was before the BIFR. As of now, the company has been given a revival package as approved by BIFR. This means that every little opportunity and support that could be extended to the company to make it revive have to be permitted to flow through whatever system that it can take in. We, therefore, are of the view that the learned Tribunal, on the totality of the facts and circumstances of the case, ought to have considered the case as one where imposition of costs would have been sufficient to grant restoration of the appeal to file, particularly when the condition imposed, that is to say, deposit of Rs. 10,00,000/- was also complied with.
In the result, this appeal is allowed, setting aside the impugned orders and ordering that R.A. No. C/ROA/20543/2015 in C/314/2004-DB of the CESTAT will stand allowed on condition that the appellant pays the respondent an amount of Rs. 5,00,000/- (Rupees five lakhs only) towards costs within a period of four weeks from today. The parties shall make their appearance before the CESTAT on 29-3-2016. If payment of costs as aforesaid has been effected, the Tribunal will decide the appeal on merits as early as possible.
Communicate copy of this judgment to the Tribunal.