2022 (8) TMI 843 - HC - Customs

Maintainability of application filed by the appellant under section 129B of the Customs Act 1962 read with R.20 of the CESTAT (Procedure) Rules 1982 for rectification of the mistake apparent on the record - power of review and rectification - HELD THAT - Strangely for reasons not discernible from the order dated 30.04.2015 the appellant while suffering an order of dismissal ex parte is called upon to deposit the full amount. The Tribunal did not impose a default clause that the appeal would be heard only upon the amount is deposited by the appellant. However by referring to the default in complying with the condition imposed on 30.04.2015 the appeal is dismissed. When an application is filed to recall several decisions are referred to and for the reasons already excerpted the Tribunal made the order dated 06.01.2017. The Tribunal proceeded on the grounds available for review of the order without appreciating the inherent error in exercise of its jurisdiction. The orders dated 06.01.2017 and 13.07.2015 are ex facie illegal and unavailable in the circumstances of the case. Thus the appeal filed by the appellant before the CESTAT resulted in dismissal for unavailable grounds and reasons. With the comprehensive consideration of both substantial questions of law the ground is made out for our interference. The questions are answered in favour of the appellant and against the respondent. Appeal allowed.

Summary

Issues:
1. Dismissal of appeal by the Tribunal for non-compliance with stay order
2. Legality of orders dated 30.04.2015, 13.07.2015, and 06.01.2017
3. Application for setting aside or recalling orders

Analysis:
1. The appellant, Forbes and Company Limited, filed an appeal questioning orders dated 06.01.2017 and 13.07.2015 before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT). The appeal was dismissed due to non-compliance with a condition imposed on 30.04.2015, leading to the filing of a Miscellaneous Application C/ROM/21353/2015. The Tribunal dismissed the application, resulting in the present appeal. The appellant raised substantial questions of law regarding the dismissal of the application for rectification of the mistake apparent on the record and the Tribunal's exercise of jurisdiction. The appellant argued that the orders were arbitrary and should be set aside to restore the appeal for a hearing on merits.

2. Advocate Dona Mary contended that the Tribunal's orders were erroneous and arbitrary. She highlighted inconsistencies in the Tribunal's decisions and argued that the dismissal of the appeal was unjustified. Advocate S Krishna, representing the respondent, emphasized the appellant's delay in pursuing the appeal and supported the Tribunal's actions. The Court analyzed the Tribunal's powers to grant or reject stay applications and noted discrepancies in the Tribunal's handling of the case. The Court found that the orders dated 13.07.2015 and 06.01.2017 were legally flawed and set them aside, allowing the application for review and recalling of the orders. The appeal was restored to the CESTAT for expeditious disposal.

3. The Court addressed the appellant's contentions regarding the Tribunal's exercise of jurisdiction and the legality of the orders. It concluded that the Tribunal's actions were unjustified, leading to the dismissal of the appeal on invalid grounds. The Court intervened in favor of the appellant, setting aside the challenged orders and directing the CESTAT to reconsider the appeal promptly. The Customs Appeal was allowed, and the matter was remitted for further proceedings within a specified timeframe.