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Judgment
Whether the CESTAT is justified in directing the appellant to deposit Rs. 40 lakhs in addition to the amount of Rs. 35 lakhs already deposited for restoring the appeal which was dismissed on 9th January, 2004, is the question raised in this appeal. The appeal is admitted on the above question and taken up for final hearing by consent of parties.
The appellant is a charitable Institution and runs a charitable cancer hospital. Challenging the order-in-original dated 9th August, 2002 confirming the duty demand of Rs. 78 lakhs, the assessee had filed an appeal before the CESTAT and by an order dated 19th May, 2003, the CESTAT had directed the appellant to deposit Rs. 30 lakhs within the time stipulated therein. Since the said amount was not deposited, the Tribunal by its order dated 9th January, 2004 dismissed the appeal for non prosecution. The Writ petition filed by the appellant against the order dated 9th January, 2004 was dismissed by this Court on 12th October, 2006.
Thereafter, during the period from the year 2006 till 1st December, 2010, the assessee by various instalments deposited in all Rs. 35 lakhs and by its application dated 9th December, 2010 applied for restoration of the appeal which was dismissed on 9th January, 2004.
By the impugned order dated 1st May, 2012 the Tribunal has directed the appellant to deposit a further sum of Rs. 40 lakhs for restoring of the appeal dismissed on 9th January, 2004.
No doubt, there is inordinate delay on the part of the appellant in complying with the pre-deposit order passed by the Tribunal on 19th May, 2003. However, looking to the facts that the assessee is a charitable institution running a charitable cancer hospital, it would be just and proper and in the interest of justice to condone the delay in depositing the amount of pre-deposit and restore the appeal without any further deposit. Accordingly, the impugned order of the CESTAT dated 1st May, 2012 as also the order dated 9th January, 2004 are quashed and set aside and the appeal is restored to the file of CESTAT. The Tribunal shall dispose of the appeal on merits and pass appropriate order in accordance with law. The appeal is disposed of in the above terms with no order as to costs.