1988 (3) TMI 451 - HC - Customs

Summary

Issues Involved:
1. Whether the order rejecting the application for restoration of the appeal requires to be interfered with.
2. Whether the order dismissing the appeal is vitiated.
3. What final orders are required to be passed in the above petitions.

Issue-wise Detailed Analysis:

Issue 1: Whether the order rejecting the application for restoration of the appeal requires to be interfered with.
The appeal was initially dismissed for non-deposit of the penalty amount. The core question was whether restoring such an appeal would amount to reviewing the earlier order. The court observed that an order of dismissal for non-deposit of the penalty amount can hardly be regarded as a final order under Section 129-B(4) of the Customs Act, 1962. The Judicial Member rightly noted that the Tribunal has jurisdiction to entertain appeals rejected by the Collector (Appeals) on the ground of non-deposit of the penalty levied or duty demanded. The Tribunal can set aside its orders and restore the appeal if circumstances warrant such a course. The absence of a specific prohibition on restoring an appeal dismissed for non-deposit of the penalty amount implies that the Tribunal has the power to recall its earlier order if the ends of justice require it. The court emphasized that substantial justice should be preferred over technical considerations, as per the Supreme Court's observation in the case of Collector Land Acquisition, Anantnag v. Mst Katiji. The court concluded that the order rejecting the application for restoration of the appeal requires to be interfered with and set aside.

Issue 2: Whether the order dismissing the appeal is vitiated.
The appeal was dismissed on 20-12-85 due to the absence of the appellant and his Advocate, and no intimation of the deposit having been made. The court noted that the appeal dismissed was a composite appeal for setting aside both the penalty and the order of confiscation of the vessel. The Tribunal did not appreciate that the appeal was composite, involving both penalty and confiscation issues. The entire composite appeal could not have been dismissed merely on the ground of non-deposit of the penalty amount. This oversight by the Tribunal vitiated the order dismissing the appeal. Therefore, the court found that the order dismissing the appeal is vitiated on this ground as well.

Issue 3: What final orders are required to be passed in the above petitions.
The court considered subsequent circumstances since the order of dismissal. The petitioner had deposited Rs. 1 lac out of the Rs. 5 lacs penalty, paid the entire redemption fine of Rs. 1,75,000/-, and executed a guarantee bond for the remaining penalty amount. These subsequent actions by the petitioner were significant and could not be ignored. Consequently, the court set aside the order rejecting the restoration application and the order dismissing the appeal. The court directed the appeal to be restored to file and heard expeditiously on merits, with a preference for disposal by 31-5-1988. The Special Civil Applications were allowed to this extent, and the rules were made absolute accordingly, with no order as to costs.

Final Orders:
The court allowed both Special Civil Applications, set aside the order rejecting the restoration application and the order dismissing the appeal, and directed that the appeal be restored and heard expeditiously on merits. The appeal should be disposed of on merits preferably by 31-5-1988. There was no order as to costs.