9911796707
TMI Blog2012 (11) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... also filed stay petitions for the waiver of the pre-deposit of the amounts involved. The Tribunal vide stay order No. S/309-314/WZB/06.C.I.(C.S.T.B) dated 4-5-06 [2006 (205) E.L.T. 1172 (Tri.-Mumbai)] directed the applicants to pre-deposit and an amount of Rs. 13 lakhs towards customs duty and Rs. 4.5 lakhs towards excise duty. The applicant did not comply with the stay order and the appeal was dismissed for non compliance on 10-8-06. An application for rectification of mistake was filed by the applicant which was also dismissed on 24-3-08. Against such an application, appellant moved Hon'ble High Court of Gujarat by filing special civil application which was withdrawn from the Hon'ble High Court of Gujarat by the appellant and again filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records and we find that the facts are not in dispute. It is a fact that the applicant's appeal was dismissed for non compliance and the last application for restoration of appeal was also dismissed on 19-4-10 for non compliance. It is seen from the application that the applicant has now complied with the pre-deposit ordered by the Tribunal vide stay order dated 4-5-06. 6. We find that there is an enormous delay in pre-depositing the amounts ordered by the Tribunal. The reasons given by the applicant in the application for restoration of appeal is that applicants were passing through a difficult financial hardship and there was great difficulty in depositing such a huge amount. We find that despite they are being considerable delay i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demanded, if the circumstances warranted such a course. It cannot be gainsaid that when the Act or the Rules in question do not specifically prohibit restoration of an appeal dismissed on the ground 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 require such a course of action. It is more so because while dismissing the appeal on the ground of non-deposit of the penalty amount, the Tribunal did not determine any issue or dispute and so there was no question of reviewing the earlier decision in the present case. Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Procedure Rules, 1982 provides for dismissal of the appeal for non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The majority view is that the Tribunal will have power to restore an appeal which has been dismissed for default in appearance on sufficient cause being shown in terms of Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Procedure Rules, 1982, but because there is no such express provision authorising the restoring of an appeal dismissed on the ground that the amount of penalty has not been paid, the Tribunal was powerless to restore such an appeal. We are unable to agree with the aforesaid majority view because such orders passed in cases where the amount of penalty has not been paid are not final orders. Such a construction would lead to injustice and would not further the ends of justice. What would happen in a given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re dismissing on the ground that the penalty amount was not deposited as directed, as a composite appeal inasmuch as the same was for setting aside the penalty and also for setting aside the order of confiscation of the said vessel. It is also to be appreciated that under the order in question redemption fine was ordered to the extent of Rs. 1,75,000/- in respect of the aforesaid vessel. It is apparent, therefore, that the entire composite appeal could not have been dismissed on the mere ground that there was a failure in depositing the penalty amount as ordered. It would seem that this aspect was not noticed by the learned Members of the Tribunal, when the order dismissing the appeal was passed. This is, therefore, one more consideration a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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