2018 (2) TMI 581 - AT - Customs

Restoration of appeal - provisional release of goods - Held that - the relief sought by the applicant in the initial appeal filed by the applicant against the order of provisional release is required to be revived otherwise the applicant shall remain remedy less. As there is change in the circumstance, therefore, the application for restoration of the appeal is required to be examined. Admittedly in this case, initially the applicant has withdrew their appeal on the ground that the relief sought in the appeal has become infructuous due to the reason that final adjudication order passed by the adjudicating authority but the said final order has been set aside by this Tribunal. Therefore, the relief sought in the initial appeal filed by the appellant survives. The appeal is restored to its original number by allowing the application for restoration of appeal.

Summary

Issues:
1. Restoration of appeal after withdrawal due to final adjudication order.
2. Tribunal's power to review its own order under Rule 41 of CESTAT (Procedure) Rules, 1982.
3. Application for restoration of appeal based on change in circumstances.
4. Interpretation of case law regarding withdrawal and restoration of appeal.

Issue 1: Restoration of appeal after withdrawal due to final adjudication order
The applicant initially filed an appeal against the provisional release of goods, but withdrew it upon the final adjudication order by the adjudicating authority. However, after the Tribunal set aside the final adjudication order and remanded the matter, the applicant sought restoration of the appeal. The Tribunal acknowledged that the relief sought in the initial appeal became relevant again as the goods were still with Customs authorities, necessitating the restoration of the appeal.

Issue 2: Tribunal's power to review its own order under Rule 41 of CESTAT (Procedure) Rules, 1982
The respondent argued that the Tribunal lacked the authority to review its own order, citing a case precedent. However, the Tribunal clarified that while it cannot review its own order, it can examine the relief sought by the litigant under Rule 41 of the CESTAT (Procedure) Rules, 1982, especially in changed circumstances. The Tribunal differentiated the present case from the cited precedent where no mistake was found on record.

Issue 3: Application for restoration of appeal based on change in circumstances
The Tribunal emphasized that since the final adjudication order had been set aside, there was no final order against the goods in question. Therefore, the relief sought in the initial appeal needed to be revived to prevent the applicant from being remedy less. The Tribunal highlighted the importance of considering the changed circumstances in deciding on the restoration of the appeal.

Issue 4: Interpretation of case law regarding withdrawal and restoration of appeal
Referring to a previous case, the Tribunal noted that if it had the power to allow withdrawal of an appeal, it could also permit the withdrawal of such an application based on sufficient grounds. The Tribunal highlighted the need to address contentious issues raised in the appeal, such as the impact of a government notification on duty and penalty liabilities. The Tribunal allowed the restoration of the appeal, emphasizing the survival of relief sought in the initial appeal despite withdrawal.

In conclusion, the Tribunal granted the application for restoration of the appeal, restoring it to its original number for final disposal on a specified date. The judgment highlighted the Tribunal's authority to consider changed circumstances and the revival of relief sought in appeals based on subsequent developments in the case.