2014 (9) TMI 577 - HC - Customs

Restoration of appeal - approval for delayed receipt of foreign exchange received late - tribunal dismissed the appeal for non-compliance of the previous conditional stay of pre-deposit order - Held that - there is no dispute about the appellant s substantial compliance requirement of having to export the goods in terms of the notification. However, the show cause notice was on account of fact that the remittances from the foreign purchaser were not received in time. - Post facto approval to the appellant to receive the amount, was concededly given much later in 2013. Immediately on becoming aware of the same, an application was moved before the Tribunal to have the appeal restored. It is evident that the receipt of remittances and more importantly the extension of time were factors entirely beyond the appellant s control. Undoubtedly, the order dated 2-1-2007 passed by the Tribunal achieved finality; at the same time we are of the opinion that in the facts of the case the Tribunal did not cease to have any discretion in the matter and having taken into account these facts could have restored the appeal given that the post facto approval in respect of almost 90% of the amount in question was received in 2013. Decision in the case of Lindt Export 2011 (9) TMI 609 - DELHI HIGH COURT distinguished - appeal restored - decided in favor of assessee.

Summary

Issues:
1. Whether the Tribunal erred in declining to restore the appeal dismissed for non-compliance of the previous conditional stay of pre-deposit order?

Analysis:
The appellant exported ready-made garments under the duty drawback scheme but failed to receive the export proceeds within the prescribed time. The respondent issued a show cause notice demanding withdrawal of the drawback enjoyed by the appellant. The Commissioner ordered recovery of the amount along with interest. The appellant approached the CESTAT seeking suspension of pre-depositing the disputed amount. The Tribunal directed the appellant to deposit a certain amount as a condition for hearing the appeal, which the appellant failed to comply with, resulting in the dismissal of the appeal.

The appellant later sought restoration of the appeal after regularizing a significant portion of the amount with RBI's approval. The CESTAT declined the relief citing non-compliance with previous orders and an inordinate delay in approaching the Tribunal. The appellant argued that the circumstances leading to non-compliance were beyond its control and emphasized the need for the appellate authority to restore the appeal in the interest of justice. The revenue contended that no substantial question arose for consideration and relied on precedents to argue against interference in the matter.

The High Court acknowledged the appellant's substantial compliance with the export requirements and the subsequent approval received in 2013 for a significant portion of the amount. It noted that the circumstances leading to non-compliance were beyond the appellant's control. The Court held that the Tribunal had the discretion to restore the appeal considering the facts of the case. It distinguished the cited precedent and concluded in favor of the appellant, setting aside the CESTAT's order and directing the restoration of the appeal for further disposal on merits.

Therefore, the High Court allowed the appeal, emphasizing the Tribunal's discretion to restore the appeal in light of the circumstances and the subsequent approval received by the appellant. The Court directed the appeal to be restored for further proceedings, highlighting the need for a fair hearing and consideration of all relevant factors.