2015 (9) TMI 923 - HC - Customs

Waiver of pre deposit - Tribunal restored the appeal of the co-applicants but refused in case of the petitioner - earlier the appeals were dismissed for non-compliance of order of pre deposit - Held that - On a perusal of the common order dated 07.07.2010 made by the Tribunal on the stay applications made by the petitioner and other co-appellants, including M/s Bhairavi Exim Pvt. Ltd., it is clear that the Tribunal had directed the appellant - M/s Bhairavi Exim Pvt. Ltd. to deposit 50% of the duty within a period of eight weeks. Insofar as the penalties imposed on the other appellants, including the petitioner are concerned, the condition of pre-deposit of penalties had been dispensed with. It appears that the appeals preferred by all the appellants had been dismissed for non-compliance of the stay order in view of the fact that M/s Bhairavi Exim Pvt. Ltd. had not made the pre-deposit of 50% of the duty. However, in case of other co-appellants who had earlier approached the Tribunal, the Tribunal by an order dated 14.02.2011, had restored their appeals by observing that the stay petitions of the applicants had been unconditionally allowed. The petitioner herein is similarly situated to the said applicants in the stay applications and therefore, was entitled to similar treatment on the ground of parity. The Tribunal was, therefore, not justified in rejecting the application for restoration made by the petitioner by holding that the stay granted in favour of the petitioner was conditional upon M/s Bhairavi Exim Pvt. Ltd. making the predeposit. - subsequent order of the Tribunal taking a view different from the view adopted in the previous order of the Tribunal, whereby the petitioner is not granted parity of treatment with other appellants, cannot be sustained. - Decided in favour of appellant.

Summary

Issues:
1. Interpretation of Tribunal's order on pre-deposit conditions.
2. Discrimination in treatment of appellants by the Tribunal.
3. Conflict between two orders passed by the Tribunal.

Analysis:
1. The judgment involves a dispute arising from a Tribunal order regarding pre-deposit conditions for appellants. The Tribunal directed M/s Bhairavi Exim Pvt. Ltd. to deposit 50% of the duty, while dispensing with the pre-deposit of penalties for other appellants, including the petitioner. However, the Tribunal dismissed appeals for non-compliance when M/s Bhairavi Exim Pvt. Ltd. failed to make the required deposit. The petitioner filed a restoration application after discovering the dismissal of their appeal due to non-compliance.

2. The petitioner argued that they were identically situated to other co-appellants who had their appeals restored by the Tribunal in a similar scenario. The petitioner highlighted a case where the Tribunal restored appeals of other co-appellants, emphasizing the unconditional nature of the stay granted to them. The petitioner claimed discrimination in treatment by the Tribunal, citing the lack of a pre-deposit order for them as a reason for appeal restoration.

3. The judgment noted conflicting orders by the Tribunal regarding the treatment of appellants in similar situations. While the Tribunal restored appeals of some co-appellants based on unconditional stay grants, the petitioner faced dismissal due to non-compliance with pre-deposit conditions. The court found this disparity unjustified and unsustainable, leading to the quashing of the impugned order and restoration of the petitioner's appeal to the Tribunal's file. The judgment emphasized the importance of parity in treatment of appellants under similar circumstances to maintain fairness and consistency in legal proceedings.