2010 (5) TMI 418 - AT - Customs

Restoration of appeal - stay applications filed by the company and its Director were disposed of by this Bench by a common order - company was directed to pre-deposit - company did not deposit the amount, and consequently, their appeal came to be dismissed - Subsequently, restoration applications were filed by the company and its Director and the same were allowed on terms vide Order Held that - The appeal of the Director should not have been dismissed on the ground on which the appeal of the company was dismissed - Director of the company is liable to be restored and his stay application requires to be reconsidered on merits - we allow the present application by restoring the appeal.

Summary

Issues:
1. Restoration of appeal for non-compliance with Section 129E of the Customs Act.
2. Dismissal of the Director's appeal along with the company's appeal.
3. Consideration of the Director's stay application independently.
4. Misconduct of justice in the case.

Issue 1: Restoration of appeal for non-compliance with Section 129E of the Customs Act
The case involved an application seeking the restoration of an appeal due to non-compliance with Section 129E of the Customs Act. The company, M/s. Divya Chemicals Ltd., was directed to pre-deposit a specific amount within a month, failing which their appeal was dismissed. The Director's appeal was also dismissed on the same ground. Restoration applications were subsequently filed and allowed on terms by the Tribunal, which was challenged by the department in the High Court.

Issue 2: Dismissal of the Director's appeal along with the company's appeal
The Director argued that he was not asked to pre-deposit any amount, and thus, it was incorrect to dismiss his appeal for non-compliance with Section 129E. The Director contended that his appeal should have been independently considered and not dismissed along with the company's appeal. The department, however, maintained that the orders passed by the Bench applied equally to the company and its Director.

Issue 3: Consideration of the Director's stay application independently
After careful consideration, the Bench found a miscarriage of justice in the case. It was noted that the benefit of waiver and stay granted to the Director was contingent upon the company's conduct. If the company did not deposit the required amount, no benefit would accrue to the Director. Therefore, the submissions made by the Director for his stay application should have been independently considered, which was not done when the appeals were dismissed.

Issue 4: Misconduct of justice in the case
The Bench concluded that the appeal filed by the Director needed to be restored, and his stay application required reconsideration on its merits. The decision was made to allow the application, restore the appeal to its original number, and schedule the stay application for a hearing. This was deemed necessary to address the miscarriage of justice and ensure a fair consideration of the Director's appeal and stay application.