Tribunal couldn't restore appeal when assessee didn't pray for extension of pre-deposit time before High Court and Supreme Court

Kisaan Gramodyog Sansthan v. Commissioner of Central Excise, Kanpur (2015) 54 taxmann.com 155 (Allahabad High Court)


Where High Court/Supreme Court has confirmed pre-deposit order of Tribunal and there was no prayer before High Court/Supreme Court seeking extension of time to make pre-deposit, Tribunal cannot restore appeal even after belated compliance with pre-deposit order.

• On assessee's stay application, Tribunal directed pre-deposit in part.
• Assessee filed appeal thereagainst before High Court, which was dismissed and a special leave petition before Supreme Court, which was also dismissed. 
• After the dismissal of SLP, assessee made pre-deposit and applied for restoration of appeal before Tribunal. 
• Tribunal held that since its order had merged with order of High Court/Supreme Court, it did not have power to restore appeal. 
• Assessee challenged Tribunal's decision before High Court.

High Court held in favour of revenue as under:

• Once a substantive appeal has been filed before the High Court against an order of the Tribunal on the application for waiver of pre-deposit, the order of the Tribunal, in such a case, would merge with the order of the High Court.
• No prayer was made before the High Court which dismissed the appeal for extension of time for pre-deposit or for restoration of the appeal. No such prayer was also made before the Supreme Court when the special leave petition was dismissed. In that view of the matter, the Tribunal was not in error in dismissing the miscellaneous application.