2019 (11) TMI 573 - HC - Customs

Revival of appeal before CESTAT - Appeal was dismissed for failure to pre-deposit the amounts as directed under Section 129E of the Customs Act, 1962 - changed circumstances - HELD THAT - This application which is made before us on the basis that the changed circumstances would warrant the setting aside of earlier orders of the Tribunal, dismissing the Petitioner s appeal, has not been made before the Tribunal. It is only after such an application is made to the Tribunal and it considers the application for restoration of its appeal on account of having paid the entire penalty and the application is disposed of by an order, that the occasion to approach this Court can arise. There is no order of the Tribunal on the changed circumstances asserted by the Petitioner. The Petitioner has chosen to directly to come to this Court without making any application to the Tribunal. This we do not appreciate. If there are changed circumstances, which according to the Petitioner, warrant the earlier order being re-called then the party has to move the Tribunal whose order is sought to be re-called before moving this Court - We are certain that if the Petitioner does move the Court, the Tribunal, on consideration of all facts, would take appropriate decision on such an application. Petition dismissed.

Summary

Issues:
Revival of appeal before Customs, Excise and Service Tax Appellate Tribunal due to failure in pre-deposit under Section 129E of the Customs Act, 1962.

Analysis:
The Petitioner filed a Petition under Article 226 of the Constitution of India to revive its appeal before the Tribunal, which was dismissed for failing to pre-deposit the required amounts as per Section 129E of the Customs Act, 1962. The Petitioner's application for modification of the order was also rejected. The Petitioner now claims to have deposited the entire penalty amount of ?15 lakhs imposed by the adjudicating authority, which was 25% of the total penalty amount that was not initially deposited, leading to the dismissal of the appeal.

The Court highlighted that its extraordinary writ jurisdiction is typically exercised for judicial review after an order has been passed by the authority, in this case, the Tribunal. The Petitioner directly approached the Court without first making an application to the Tribunal, which the Court did not appreciate. The Court emphasized that if there are changed circumstances warranting a review of the earlier order, the party must first move the Tribunal before approaching the Court. The Court stated that the Tribunal should be given the opportunity to consider all facts and make an appropriate decision on any application for restoration of the appeal.

The Petitioner expressed apprehension that the Tribunal might not entertain their application due to a previous order by the Court. However, the Court clarified that the previous appeal by the Petitioner was only regarding a modification/rectification order passed by the Tribunal and not the original order dismissing the appeal. The Court asserted that it had not examined the merits of the application and emphasized that it is solely for the Tribunal to decide on any application filed in accordance with the law.

In conclusion, the Court was not inclined to entertain the Petition and dismissed it, emphasizing the importance of following the proper legal procedure by first approaching the Tribunal before seeking relief from the Court.