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2020 (11) TMI 688 - HC - CustomsMaintainability of appeal - non-deposit of pre-deposit amount - Principles of Natural Justice - grounds urged in the appeal is that the third respondent ought to have extended an opportunity to the petitioner to cross-examine the officers who allegedly conducted search and seizure proceedings - HELD THAT - In the present case, the appeal is dismissed on the ground that the petitioner did not deposit 50% of the demand in terms of the order dated 2-2-2016. It must also be mentioned that the directors of the petitioner s company also did not deposit 50% of the penalty imposed on them, and further it must also be mentioned that there is no dispute that none appeared for the petitioner on 18-10-2016 when the appeal was listed for orders on an application filed for recall of the order dated 2-2-2016. The CESTAT s order is not an order of modification or confirmation or annulling, or an order of remanding. The impugned orders will have to be set aside and the appeal restored for fresh disposal as contemplated under Section 129B of the Customs Act leaving it open to the parties to urge their respective grounds before the CESTAT. Further, given the facts and circumstances of the case, it would also be just and reasonable to restore the petitioner s application for recall of the interim order dated 2-2-2016. Petition allowed in part.
Issues:
Dismissal of appeal by CESTAT for non-compliance with stay order and failure to appear, denial of opportunity to cross-examine witnesses, interpretation of Section 129B of the Customs Act, reliance on legal precedent, restoration of appeal and application for recall of order. Analysis: 1. The petitioner, a private limited company, challenged the dismissal of its appeals by the CESTAT due to non-compliance with a stay order. The CESTAT found the petitioner had not followed directions to deposit 50% of the duty and penalty, leading to the dismissal of the appeals. The CESTAT's decision was based on the petitioner's failure to appear and comply with the stay order. 2. The petitioner contended that they were not given an opportunity to cross-examine witnesses during the proceedings, which they believed was essential for a fair hearing. The appeal highlighted the failure of the third respondent to allow cross-examination, which the petitioner argued rendered the original order impermissible in law. 3. The petitioner engaged legal counsel to handle the appeal, but due to the absence of representation on the scheduled date, the CESTAT passed orders directing the petitioner to deposit the required amounts. The petitioner later filed an application for recall of the order, citing the counsel's absence as a reason for non-compliance. 4. The petitioner argued that the CESTAT should have considered their application for recall and not dismissed the appeal for default. They relied on Section 129B of the Customs Act, which mandates that appeals be decided on merit and not dismissed for procedural lapses. The petitioner cited the Balaji Steel Re-rolling Mills case to support their position. 5. The respondents contended that the petitioner's lack of diligence throughout the proceedings justified the dismissal of the appeal. They argued that the petitioner's delay and lack of diligence were evident not only in the current appeal but also in previous proceedings, justifying the CESTAT's decision. 6. The Supreme Court's decision in Balaji Steel Re-rolling Mills was cited by both parties to support their respective arguments. The Court emphasized that appeals should be decided on merit and not dismissed for want of prosecution, as mandated by Section 129B of the Customs Act. 7. Ultimately, the High Court partially allowed the writ petition, setting aside the CESTAT's order and restoring the appeal for reconsideration on merits. The Court also directed the CESTAT to expedite the disposal of the appeal and reconsider the petitioner's application for recall of the order. The judgment aimed to ensure a fair hearing and adherence to legal procedures in line with Section 129B of the Customs Act.
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