2016 (4) TMI 183 - HC - Customs

Challenging dismissal of appeal - Non-compliance of conditional order - Held that - it is possible for the Tribunal to tinker with its earlier order either without an application for modification or without an application for extension of time. Many times, conditional orders are passed as self working orders. It does not mean that a conditional order, passed not as a self working order, will always remain alive to be tinkered with at any point of time, say for instance even nearly after two years. In this case, even assuming that the ratio laid down by the Calcutta High Court in the case of CCE Vs. Shree Govinddeo Glass Works Ltd 2010 (10) TMI 750 - CALCUTTA HIGH COURT is correct, the Tribunal could not have done anything in the light of the fact that the conditional order of the Tribunal passed originally in 2009 got modified by an order of the learned Judge of this Court and it was confirmed by the Division Bench. Therefore, even if the law laid down by the Calcutta High Court is accepted by the Tribunal to reflect the correct position in law, the Tribunal could not have modified the order passed by this Court. Once a conditional order passed by the Tribunal attains a finality, the same cannot be annulled after a consequential order is passed. The conditional order was neither challenged by way of an appeal nor an application for extension of time or for modification was ever filed. The contention that no finality attaches to an interim order, cannot be accepted. In so far as the application for stay and the conditional order are concerned, it attains finality unless modified by a subsequent order on an application for extension or for modification. - Decided against the appellant

Issues:
1. Challenge to dismissal of appeal for failure to comply with pre-deposit order.
2. Modification of pre-deposit amount by Single Judge.
3. Division Bench confirming the reduced pre-deposit amount.
4. Dismissal of main appeal by Tribunal due to non-compliance.
5. Appellant's contention regarding subsequent Supreme Court decision.
6. Applicability of rectification principles in the present case.
7. Tribunal's authority to dismiss appeal for non-compliance with conditional order.

Issue 1: Challenge to dismissal of appeal for failure to comply with pre-deposit order

The appeal was filed under Section 130A of the Customs Act, 1962, challenging the dismissal of the appellant's appeal by the Tribunal for their failure to comply with an order to make a pre-deposit. The initial order imposing anti-dumping duty was contested through appeals, leading to a reduced pre-deposit amount set by a Single Judge, which was later confirmed by the Division Bench. Despite the appellant's failure to comply, the appeal was not formally dismissed until the Revenue filed for early hearing, resulting in the Tribunal's dismissal of the main appeal.

Issue 2: Modification of pre-deposit amount by Single Judge

The Single Judge modified the pre-deposit order reducing the amount to be paid to Rs. 75 lakhs from the original amount imposed by the Tribunal. This modification was based on the appellant's plea of financial hardship, as indicated in the balance sheet for 2001-02. The Division Bench later upheld this reduced pre-deposit amount, emphasizing the need for the appellant to establish undue hardship beyond what was presented initially.

Issue 3: Division Bench confirming the reduced pre-deposit amount

The Division Bench confirmed the Single Judge's order of reducing the pre-deposit amount to Rs. 75 lakhs, rejecting the appellant's argument that the financial difficulties expressed were sufficient to warrant further reduction. The Division Bench emphasized the importance of establishing undue hardship and found no reason to interfere with the Single Judge's order, leading to the dismissal of the writ appeal.

Issue 4: Dismissal of main appeal by Tribunal due to non-compliance

The Tribunal dismissed the main appeal after the appellant failed to comply with the conditional pre-deposit order. Despite the appeal being in a dormant state for an extended period, it resurfaced when the Revenue sought early hearing. The Tribunal's decision to dismiss the appeal was based on the appellant's failure to comply with the conditional order, leading to the current challenge before the High Court.

Issue 5: Appellant's contention regarding subsequent Supreme Court decision

The appellant argued that a subsequent decision by the Supreme Court had established new legal principles favoring the appellant, rendering the original orders non est in the eye of the law. The appellant contended that the Tribunal could not have dismissed the main appeal based on non-compliance with the conditional order in light of the new legal position established by the Supreme Court.

Issue 6: Applicability of rectification principles in the present case

The appellant relied on various legal precedents, including decisions by the Supreme Court and High Courts, regarding rectification of orders based on changed legal positions. However, the Court differentiated the present case from those precedents, highlighting the finality of the orders modifying the pre-deposit amount and the lack of efforts by the appellant to address the non-compliance issue over an extended period.

Issue 7: Tribunal's authority to dismiss appeal for non-compliance with conditional order

The Court examined the Tribunal's authority to dismiss an appeal for non-compliance with a conditional pre-deposit order. While the appellant argued for a more lenient approach based on financial difficulties or other circumstances, the Court emphasized the finality of the modified pre-deposit orders and the lack of challenges or efforts by the appellant to address the issue of non-compliance in a timely manner. The Court concluded that the appeal did not merit acceptance based on the circumstances and legal principles involved.

This detailed analysis of the judgment covers the various issues involved in the case, including challenges to the dismissal of the appeal, modifications of pre-deposit amounts, the Tribunal's authority to dismiss appeals, and the appellant's contentions regarding changed legal positions.

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