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2018 (10) TMI 1808 - AT - CustomsPermission for withdrawal of appeal - imposition of penalty on CHA - Power of Tribunal to recall the order of withdrawal of the appeal - whether the appellant can now move an application seeking restoration of the appeal and recalling of the earlier order? HELD THAT - The issue stands decided by the Hon ble Delhi High Court in the case of Mediplus (India) Ltd. 2017 (4) TMI 137 - DELHI HIGH COURT . The Hon ble Delhi High Court observed that it is settled law that mistake of law or mistake in legal understanding of opinion of the Counsel does not bind party or at least to the extent of causing irreparable prejudice. The appeal in that case was sought to be withdrawn on the ground that the assessee intended to pursue the alternative remedy. However, on realizing that there was no alternative remedy available to the appellant, the order of withdrawal of appeal was recalled and the appeal was restored to its original number. The Hon ble Punjab and Haryana High Court s decision in the case of Teja Singh, 1981 (3) TMI 258 - PUNJAB AND HARYANA HIGH COURT relied upon by the Ld. AR is not applicable to the facts of the present case inasmuch as in that case after withdrawing the writ petition, the petitioner filed a fresh writ petition on the same set of facts and circumstances, in which circumstance the Hon ble High Court observed that the same is not permissible. Final order recalled - appeal restored to its original number - List the appeal for final hearing on 15th November, 2018.
Issues:
Withdrawal of appeal leading to consequences on the appellant's license renewal, Tribunal's power to recall order of withdrawal, Precedents cited by the Ld. Advocate, Opposition by Ld. DR, Appellant's right to restore the appeal, Applicability of cited precedents, Decision to recall the Final Order and restore the appeal, Fixing the appeal for final hearing. Analysis: The appellant filed a miscellaneous application seeking withdrawal of the Final Order dismissing the appeal, highlighting that the withdrawal caused prejudice as the appellant's license renewal was affected. The Ld. Advocate argued that the Tribunal has the authority to recall the withdrawal order, citing various decisions, including the Hon'ble Delhi High Court's ruling in Mediplus (India) Ltd. case and Tribunal decisions in Padiyur Sarvodaya Sangh and R.G. Gupta & Company cases. Additionally, reliance was placed on the Mumbai High Court's decision in Commissioner of Customs & Central Excise, Goa v. Pankaj Jaju and Gujarat High Court's ruling in Gayatri Enterprise v. State of Gujarat. The Ld. DR opposed the application, contending that restoring the appeal after withdrawal would lead to an abuse of the court process and endless litigation, citing the Hon'ble Punjab & Haryana High Court's judgment in Teja Singh v. U.T. of Chandigarh. After considering both sides' submissions, the Tribunal deliberated on the appellant's right to seek restoration of the appeal and the recall of the earlier order. The Tribunal referenced its own decision and the Hon'ble Delhi High Court's ruling in Mediplus (India) Ltd., emphasizing that a mistake in legal understanding or opinion of counsel does not bind the party if it causes irreparable prejudice. In contrast, the Tribunal found the Ld. AR's reliance on the Hon'ble Punjab and Haryana High Court's decision in Teja Singh case not applicable to the present scenario, where the withdrawal was not followed by filing a fresh petition on the same facts. Consequently, the Tribunal decided to recall the Final Order and restore the appeal to its original number. The appeal was scheduled for final hearing on 15th November 2018.
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