JUDGMENT : 1. The Court: In an excise matter, the Customs Excise and Services Tax Tribunal, East Regional Bench, Kolkata by its order dated 3rd September 2013 directed the appellant company (“the appellant”) to pay 50% of the duty within eight weeks of communication of the order. Upon payment of this 50% duty recovery of the dues against the appellant would stand stayed. This 50% amount was Rs. 42,87,107/-. 2. For whatever reason the appellant was unable to pay the amount or did not pay it. It applied to the tribunal for review or variation of its order. On 25th November 2013 this prayer was refused and the appeal was dismissed on the ground of failure of the appellant to make the pre- deposit. The appellant approached this Court by way of an appeal which was disposed of on 4th September 2015 by a Division Bench of his Court directing them to pay Rs. 35 lakhs instead of Rs. 42,87,107/-. 3. We have not been told the reason but against this order also the appellant preferred a review application before this Court which was dismissed on 6th September 2016. 4. Aggrieved, the appellant made a special leave petition before the Supreme Court on 10th April 2017. This special leave petition was dismissed. The highest Court granted further four weeks’ time to deposit Rs. 35 lakhs by its order dated 10th April 2017. Carrying its trail of review applications further the appellant filed another review application before the Supreme Court which was dismissed on 17th August 2017. 5. Meanwhile, on 13th September 2018 the Deputy Commissioner of Central Tax, CGST-CX, Maheshtala Division directed the bank of Baroda, 1/1, Camac Street Branch to deduct Rs. 2,93,03,067/- from the account of the appellant and remit the same to them. 6. Hence this application. 7. Mr. Banerjee, learned Advocate for the respondent department opposed this application. He submitted that this High Court could not extend the time granted by the Supreme Court. The time granted by the Supreme Court had elapsed without the appellant taking any steps in the matter and at this point of time the order of the tribunal could not be enforced by this Court by accepting security. The appeal had been dismissed long ago. 8. Mr. Dutta, learned senior Advocate, for the appellant made straight forward submissions. The time granted by the Supreme Court had elapsed without the appellant taking any steps in the matter and at this point of time the order of the tribunal could not be enforced by this Court by accepting security. The appeal had been dismissed long ago. 8. Mr. Dutta, learned senior Advocate, for the appellant made straight forward submissions. He said that it would appear from the admitted records of the respondent department that a little higher than Rs.42,87,107/- and to be more specific Rs.42,88,000/- was lying with the Department on account of his client. Even if it is said that the time limit to comply with the order of the Supreme Court was over and that this Court had no jurisdiction to extend the time, it was always open to the appellant to comply with the order of the tribunal directing pre-deposit. In fact, by this application the appellant was asking the department to effect the said compliance by adjusting the above amount lying in deposit with them against their dues to the Department. 9. We have examined the Division Bench decision of the Gujarat High Court in ‘Scan Computer Consultancy vs. Union of India’ reported in 2006 (204) E.L.T. 43 (Guj.) holding that the Court had the power to set aside its order dismissing the appeal for failure to comply with the pre-deposit conditions upon due compliance thereof by the appellant. Another Division Bench of the same Court in ‘Priya Dyers vs. Commissioner of Central Excise’ reported in 2014 (305) E.L.T. 504 (Guj.) followed the decision saying that the Court should take a liberal view of late compliance of pre-deposit. It should be implied that the Court had powers to restore such appeals. 10. Mr. Dutta also cited several decisions where the Supreme Court extended the time for making pre-deposit and restored the appeals [Rajkamal Textile Printery vs. Union of India’, reported in 2016 (332) E.L.T. 99 (Guj.), ‘Kisaan Gramodyog Sansthan vs. Commissioner of C.Ex., Kanpur’ reported in 2017 (50) S.T.R. 103 (S.C.), ‘Kirtikumar Jawaharlal Shah vs. Union of India’ reported in 2014 (304) E.L.T. 641 (S.C.)]. 11. Further more, Mr. Dutta draws the attention of this Court to Section 35F of the Central Excise Act, 1944 before its amendment, which applied to this case. 11. Further more, Mr. Dutta draws the attention of this Court to Section 35F of the Central Excise Act, 1944 before its amendment, which applied to this case. He said that this duty deposit could be demanded if the goods of the appellant were not under the control of the Central Excise Authorities. In this case the appellant’s goods were in the control of the respondents. To sum up, he said there was enough security in their hand to enable the tribunal to hear the appeal as well as not to take any steps for realization of their dues pending hearing of the appeal. We agree with such submission. 12. We think that an order dismissing an appeal on the ground of failure of the appellant to make the pre-deposit is like dismissal of an appeal for non-prosecution. It is never on merits. Like the Court has the power to restore a suit dismissed for non-prosecution, the Court enjoys similar powers to restore such appeals. 13. The appellant made a miscellaneous application before the tribunal to hear out the appeal. This application was dismissed on 12th November, 2018, the tribunal advancing the reason it had become functus officio in the matter. 14. Under those circumstances, we stay the garnishee order dated 13th September, 2018 read with the corrigendum dated 19th September, 2018. We direct the tribunal to hear the appeal before it without insisting on any further pre-deposit within six months from the date of communication of this order. Any future execution or sale of the properties of the appellant to realize the dues of the respondent department could only be in accordance with the order to be passed by the tribunal. 15. We set aside the impugned order dated 12th November, 2018 of the tribunal with the necessary finding that the tribunal has not become functus officio in the matter and should proceed as directed by us. 16. The appeal (CEXA No.96 of 2018) and the application (GA No.3282 of 2018) are disposed of. 17. Certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.