2007 (10) TMI 55 - AT - Customs

Restoration of appeal not amounts to review of the earlier order because earlier dismissal order for non-compliance with pre-deposit directions cannot be treated as final order Restoration allowed Tribunal can modify its stay order on ground of change in circumstances and financial hardships

Summary

Issues Involved:
1. Restoration of dismissed appeals.
2. Modification of the stay order.

Issue-wise Detailed Analysis:

1. Restoration of Dismissed Appeals:
The appeals (Nos. C/414 & 415/02) were initially dismissed by the Tribunal on 27-11-2002 due to non-compliance with the pre-deposit requirement of Rs. 40 lakhs. The appellant argued that the dismissal was not on merits and could be reconsidered due to changed circumstances, including financial crises and actions by the Mumbai Debt Recovery Tribunal. The appellant cited case laws, including Hussein Haji Harun v. UOI and SMI Electrowire Pvt Ltd. v. UOI, to support the restoration of appeals dismissed for non-compliance. The Tribunal found merit in the appellant's arguments, noting that the dismissal was procedural and not a final order on merits. The Tribunal referenced the Gujarat High Court's decision in Hussein Haji Harun v. UOI, which held that the Tribunal has the jurisdiction to restore appeals dismissed for non-deposit if circumstances warrant such action. Consequently, the Tribunal restored the appeals to their original numbers.

2. Modification of the Stay Order:
The appellant sought modification of the stay order that required an additional deposit of Rs. 40 lakhs, arguing that there were significant changes in circumstances, including a financial crisis confirmed by the Mumbai Debt Recovery Tribunal's order. The Tribunal noted that the original stay order did not fully consider the appellant's financial hardship, as the Debt Recovery Tribunal's proceedings were ongoing at that time. The Tribunal referred to the Bombay High Court's decisions in Baron International Ltd. v. UOI and Maina Khemka v. UOI. While the former emphasized the need for a prima facie examination of modification applications, the latter affirmed the Tribunal's jurisdiction to modify orders within legal parameters. The Tribunal found that the appellant had demonstrated a valid case for modification due to financial hardship and the substantial deposit already made (Rs. 50 lakhs during investigation). Therefore, the Tribunal modified the stay order, waiving the additional Rs. 40 lakhs deposit requirement, and deemed the Rs. 50 lakhs already deposited as sufficient for hearing the appeal.

Conclusion:
The Tribunal restored the appeals and modified the stay order, requiring the appellant to deposit Rs. 25,000 as costs. Upon proof of this deposit, the appeals were to be listed for final hearings. The miscellaneous applications were disposed of accordingly.