2007 (12) TMI 51 - AT - Customs

Notice was not served on the Appellant exactly on the day of hearing so he could not appeal and plead its case - no mala fides - no deliberate defiance of Law, so restoration application allowed CHA, Appellant had by no means any knowledge about the alleged mischief nor the CHA deliberately acted to defy the law - Innocence of the Appellant is patent from the record without any cogent evidence to contradict entire modus operandi of the Appellant so penalty u/s 112(b) is set aside

Summary

Issues:
Appeal dismissal for failure to appear, restoration application, penalty imposed on CHA, lack of communication for hearing notice, invocation of Rule 41 of CESTAT Procedure Rules, innocence of the Appellant, unsustainable penalty.

Analysis:
The appeal was dismissed due to the Appellant's failure to appear for the hearing, without touching upon the merits of the case. The Appellant's consultant argued that the dismissal prejudiced the CHA, who was penalized without active involvement in the alleged offense. The consultant emphasized the lack of evidence linking the CHA to the charges under Section 112(b) of the Customs Act, 1962. The consultant requested restoration of the appeal for a fair hearing to prevent injustice. The JDR for Revenue contended that the dismissal was justified, citing the Adjudicating Authority's findings of the CHA's involvement in misleading Customs Authority.

Upon hearing both sides and reviewing the record, the Tribunal acknowledged the litigant's past negligence but recognized the serious prejudice the Appellant would face if not heard on merit. The Restoration Application highlighted the lack of proper communication regarding the hearing date, leading to non-compliance by the Appellant. The Tribunal noted that the Appellant was not deliberately defying the law and deserved consideration for restoration. Rule 41 of CESTAT Procedure Rules, 1982 was invoked to restore the case for a hearing on merit, as the appellant was not heard properly.

The Restoration Application revealed that the CHA-Appellant had no knowledge or deliberate involvement in the alleged offense, indicating innocence. The Tribunal found no evidence of contumacious conduct or mala fide intentions to impose the penalty of Rs. 25,000. The Tribunal concluded that the penalty was unsustainable as there was no material to support the charges under Section 112(b) of the Act. The Appeal was allowed, granting the Appellant consequential benefits in accordance with the law.

In summary, the judgment focused on the restoration of the appeal for a fair hearing on merit, considering the lack of communication, innocence of the Appellant, and the unsustainable penalty imposed on the CHA. The Tribunal emphasized the importance of evidence and proper procedure in imposing penalties under the Customs Act, ultimately ruling in favor of the Appellant.