2022 (8) TMI 886 - AT - Customs

Seeking restoration of appeal - failure to comply with the statutory requirement of deposit contemplated under Section 129E of the Customs Act, 1962 - it is stated that the appellant was close to bankruptcy due to financial crisis and so could not deposit the statutory amount contemplated under Section 129A of the Customs Act - time limitation - HELD THAT - A perusal of the Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal Rules, 1982, leaves no manner of doubt that it is only when the appellant does not appear when the case is called on for hearing and the appeal is dismissed for default and the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the order and restore the appeal. In the present case, learned counsel of the appellant had appeared on the date fixed and made submissions. It is on a consideration of the submission advanced that that the appeal was dismissed for non-compliance of the statutory requirement. Rule 20, in such circumstances, would not be applicable. It is true that no time limit is prescribed for filing an application for restoration of appeal, but nevertheless the applicant has to be the vigilant and the application should be filed at the earliest opportunity after explaining the cause for non-appearance of the applicant on the date when the matter was called out. In the present case, the application was filed by the appellant for recall of the order dated 07.07.2015 only on 31.05.2022. The appellant had throughout contested before the Delhi High Court and the Supreme Court that it should not be required to deposit the amount because the un-amended provisions of Section 35 of the Customs Act would be applicable. Even after the dismissal of the Civil Appeal by the Supreme Court on 23.01.2017, the appellant took more than five years to file the application for recall of the order. No satisfactory explanation has been given by the applicant for this enormous delay. In fact, only a casual statement has been made that earlier the financial capacity of the appellant was bad and it took sometime to recover, whereafter the amount was deposited in September 2020. The application was filed after two years of the deposit. The application, therefore, deserves to be rejected for this reason also. Application dismissed.

Summary

Issues Involved:
1. Compliance with Section 129E of the Customs Act, 1962.
2. Applicability of the amended vs. un-amended provisions of Section 129E.
3. Timeliness and maintainability of the application for restoration under Rule 20 of the 1982 Rules.
4. Financial hardship and its impact on compliance.
5. Alleged incorrect legal advice and its consequences.

Detailed Analysis:

1. Compliance with Section 129E of the Customs Act, 1962:
The Tribunal dismissed the appeal on 07.07.2015 due to non-compliance with the statutory requirement of deposit under Section 129E of the Customs Act, 1962. The appellant argued that the pre-amended Section 129E should apply, as the show cause notice was issued before 06.08.2014, even though the adjudicating authority's order was passed after that date. This argument was rejected based on the Allahabad High Court's decision in Ganesh Yadav vs. Union of India, which held that the amended Section 129E applies to appeals filed after 06.08.2014.

2. Applicability of the Amended vs. Un-Amended Provisions of Section 129E:
The Delhi High Court, in its order dated 20.10.2015, upheld the Tribunal's decision, affirming that the amended Section 129E applied since the adjudicating authority's order was passed after 06.08.2014. The High Court noted, "the amended Section 129E of the Act will apply to all appeals filed under Section 130 of the Act on or after 6th August 2014." The Supreme Court also dismissed the appellant's appeal and subsequent review petition, finding no merit in the arguments presented.

3. Timeliness and Maintainability of the Application for Restoration under Rule 20 of the 1982 Rules:
The application for restoration was filed under Rule 20 of the 1982 Rules on 31.05.2022, nearly seven years after the original dismissal. Rule 20 allows for restoration if the appellant was absent during the hearing, but in this case, the appellant's counsel was present and made submissions. The Tribunal concluded that Rule 20 was inapplicable as the appeal was dismissed for non-compliance with the statutory requirement, not for default of appearance.

4. Financial Hardship and Its Impact on Compliance:
The appellant claimed financial hardship prevented the deposit of the statutory amount required under Section 129E. However, the Tribunal noted that the appellant did not provide a satisfactory explanation for the delay in filing the application for restoration. The appellant only deposited the mandatory 7.5% of the duty amounting to Rs. 44,70,237/- in September 2020, long after the appeal's dismissal.

5. Alleged Incorrect Legal Advice and Its Consequences:
The appellant alleged that their counsel failed to argue the main point regarding the inflated duty demand and instead focused on the applicability of the un-amended Section 129E. The Tribunal rejected this argument, noting that the appellant had consistently raised the same ground before the Delhi High Court and the Supreme Court, both of which dismissed the appeals.

Conclusion:
The Tribunal found no merit in the appellant's application for restoration, citing the inapplicability of Rule 20, the significant delay in filing the application, and the lack of a satisfactory explanation for the delay. The Tribunal emphasized that the appellant had ample opportunity to comply with the statutory requirements and contest the appeal diligently but failed to do so. Consequently, the application for restoration was rejected.