2023 (3) TMI 1130 - AT - Customs

Seeking restoration of appeal - application for restoration of appeal has been filed after more than six years - seeking recall of order - in a related matter which was the cause of initiation of action in these proceedings has now been remanded by the Tribunal to the Commissioner - HELD THAT - There was no infirmity in the final order passed by this Tribunal based on the circumstances available on that date. Having passed the Final Order, this Tribunal has became functus officio. If the appellant was aggrieved by the final order the proper course of action could have been to file an appeal. Simply because in a related matter which was the cause of initiation of action in these proceedings has now been remanded by the Tribunal to the Commissioner, the final order does not become invalid and we find no ground to recall our final order and restore this appeal. It also needs to be pointed out that the action against the appellant was initiated based on a letter of Commissioner of Customs, Kandla dated 3.12.2010 addressed to the Commissioner, Jodhpur and NOT based on any Order-in-Original passed by any Commissioner. Consequent upon the investigation by DRI a show cause notice came to be issued to the exporter M/s Dadi Impex. During investigation, it came to light that the applicant/appellant before us acted as CHA and in discharging his functions, violated certain provisions of CHA Licensing Regulations. These allegations of violation of CHALR by the appellant/applicant have been confirmed by the Commissioner, Jodhpur and upheld by the Final Order dated 9.8.2016. Any decision regarding action under the Customs Act against the exporter and/or the appellant are separate proceedings. The application for restoration application is accordingly, dismissed.

Summary

Issues:
The issues involved in this case include seeking restoration of a Final Order passed by the Tribunal, the delay in filing the restoration application, and the grounds for recalling the final order based on related proceedings.

Issue 1: Restoration of Final Order:
The appellant filed an application seeking restoration of Final Order No. C/A/52959/2016-CU dated 09.08.2016 passed by the Tribunal, which dismissed the appellant's appeal and affirmed the impugned order. The appellant argued that a parallel proceeding regarding alleged violations by another party resulted in proceedings against the appellant, leading to the cancellation of their CHA license. The appellant contended that since the main cause of action was in jeopardy due to related proceedings, the final order should be recalled.

Issue 2: Delay in Filing Restoration Application:
The application for restoration was filed more than six years after the final order was passed. The appellant acknowledged that the final order was passed on merits after hearing both sides and recording reasons. The authorized representative for the Revenue argued that the CESTAT Procedure Rules allow restoration only in cases decided ex-parte, not after a full hearing. Citing a previous judgment, it was emphasized that an inordinate delay in filing for restoration, without a satisfactory explanation, is grounds for rejection.

Issue 3: Grounds for Recalling Final Order:
After considering both sides, the Tribunal found no infirmity in the final order passed based on the circumstances at that time. The Tribunal highlighted that the action against the appellant was initiated based on a letter from the Commissioner of Customs, not an Order-in-Original. The Tribunal noted that the related remand order from the Ahmedabad Bench was passed five years before the restoration application was filed, with no indication that the case against the exporter had not been proved. Ultimately, the Tribunal dismissed the restoration application, stating that the final order remained valid despite the related proceedings.

Separate Judgement:
No separate judgment was delivered by the judges in this case.