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TMI Blog1987 (8) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act. The vessel was, however, permitted redemption on payment of a fine of Rs. 1,75,000/-. After the rejection of the applicant s appeal by the Tribunal, the applicant had approached the Hon ble Gujarat High Court at Ahmedabad and obtained the order for the release of the vessel on payment of the redemption fine, while the appeal against the levy of penalty by the Collector was still out of and therefore he would pray the Tribunal to restore his appeal to the original Registry No. CD(Bom) 109/85. Shri Gajjar submitted that the applicant was prepared to make the deposit of Rs. one lakh as ordered by the Tribunal on the stay application filed by the applicant earlier. He, therefore, requested that the prayer be granted. 2. On behalf of the Collector, Shri Senthivel submitted that the Tribunal did not dismiss the appeal for default or non-compliance with any procedural requirements. The Tribunal has passed a final order in terms of Section 129B of the Customs Act and rejected the appeal of the applicant for non-compliance with the provisions of Section 129E of the Customs Act. In terms of Section 129B(4) the Tribunal s order had become final. The only savings were those which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e penalty amount imposed on him. This Bench by its order, dated 15-4-1985 agreed for the dispensation of the penalty on the applicant depositing Rs. 1 lakh. The applicant was granted two months time to make the deposit. The applicant, however, did not deposit the amount directed to be deposited. A show cause notice was issued to the applicant as to why his appeal should not be rejected in terms of Section 129E of the Customs Act. In response to the said show cause notice, the appellant learned advocate addressed a letter requesting extension of time uptil 25.11.1985 for making the deposit. On 8-11-1985 the learned advocate made a submission that since one of the Members of the Bench had passed a detention order under COFEPOSA against the applicant his matter should not be heard by this Bench. Hence the hearing was adjourned. Later on the same learned advocate by a separate application withdraw his objection. Thereafter a fresh show cause notice was issued directing the applicant to show cause as to why his appeal should not be rejected for non-deposit in terms of Section 129E of the Customs Act and the matter was listed for hearing on 30th December, 1985. On that day neither the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. But then it is settled law that the Collector (Appeals) as well as the Tribunal can reject or dismiss the appeal for non-deposit of the penalty levied or the amount ordered to be deposited. (See the judgement of the Supreme Court reported in A.I.R. 1971 S.C. 2780 Pravin Chandra Purshottam vs. Collector of Customs.) 10. The show cause notice was issued to the present applicant as to why his appeal should not be rejected in terms of Section 129-E. The appeal was also rejected in terms of Section 129-E. 11. Section 129-B which is the only section which empowers the Tribunal to pass orders on the appeals as it thinks fit did not authorise the Tribunal to reject or dismiss the appeal for non-deposit of the penalty amount or for the default of the appellant to appear on the date fixed for hearing of the appeal. Therefore, strictly it cannot be contended that the rejection of the appeal of the present applicant for non-deposit of the penalty amount was in terms of Section 129-B. In the absence of any other section empowering the Tribunal to dismiss the appeal for non-deposit of the penalty amount, the order of dismissal may be considered as one made under Section 129-B though not i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dismissal of the appeal. Whether in a case of that nature will the Tribunal be justified in not setting aside its earlier order on the ground that it would amount to review of its earlier order? In my opinion, it would be a travesty of justice if the Tribunal were to take such a stand. 14. The Tribunal is a judicial body. It has all the trappings of a Court of Law. It can enforce the attendance of any person and examine him on oath. It can compel the production of books of accounts and other documents and issue commissions. It can order discovery and the inspection. The proceeding before the Tribunal is deemed to be a judicial proceeding within the meaning of Section 193 and 228 and for the purpose of Section 15. The judicial body cannot plead helplessness to set right the gross injustice. What is not prohibited is deemed to be permitted. When the Act or the Rules do not specifically prohibit restoration of an appeal dismissed on the grounds of non-deposit of the penalty amount the Tribunal certainly has the power and jurisdiction to recall its earlier order if the ends of justice requires such a course of action. The Tribunal did not determine any issue on dispute. Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal which has been rejected for non-deposit of the penalty amount. But then, no party can claim as of right that every appeal which has been dismissed for non-deposit of the penalty amount should be restored. The discretion vests with the Tribunal. 17. In the instant case, on the date on which the appeal was listed for showing cause against the dismissal, if the appellant had appeared and requested for extension of time, probably the Tribunal would have granted his request. Just because the appellant did not appear on that day and did not make the request should not come in the way of restoration of his appeal if the Tribunal were to be satisfied as to the bonafide of the offer made by the applicant regarding deposit of the penalty amount directed to be deposited. 18. The restoration of the appeal, in these circumstances, in my opinion, would not amount to review of the earlier order. It only furthers the ends of justice. Therefore, I allow this application and direct that the order of rejection of the appeal be set aside and the appeal be restored to its original file on the applicant depositing a sum of Rs.1,00,000/-within one week from the date of receipt of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been dismissed for default in appearance. In that event, the appeal could have been restored, on sufficient cause being shown, in terms of Rule 20 of the Customs Excise and Gold (Control) Appellate Tribunal Procedure Rules, 1982. But, possibly because of the defient attitude adopted by the applicant, the West Regional Bench dismissed the appeal itself for non-compliance with the condition of pre-deposit under Section 129-E. Such order of dismissal disposed of the appeal finally so far as this Tribunal is concerned. Restoring such an appeal would amount to review of the earlier order of dismissal of the applicant by the West Regional Bench. Since the Tribunal has no such power to reviewing its earlier final order, I hold that the application for restoration of the appeal has no merit. I, therefore, dismiss the application. 22. The matter should now be placed before West Regional Bench for passing the final order on the application. Sd/- (K.L. Rekhi) Member (Technical) Bombay, 24-8-1987 FINAL ORDER In the view of the majority of the Members who heard this application, this application is required to be rejected and accordingly, we reject the same. Sd/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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