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TMI Blog2022 (8) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reported in 2015 (326) E.L.T. 472 (Del.), is reproduced below :- 12. The Court notes that as far as the present case is concerned, the CESTAT had to apply the second proviso to the amended Section 129E of the Act since the appeal before it was filed after 6th August 2014. Before this Court there is no challenge in these proceedings to the validity of the amended Section 129E of the Act. As regards the interpretation of the amended Section 129E of the Act, the Court concurs with the decision of the Allahabad High Court in Ganesh Yadav versus Union of India (supra) in the context of the identically worded Section 35F of the CE Act and holds that 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. 13. In the present case, the Appellant deposited a sum of Rs. 4,95,532/- on 8th May 2015 which was admittedly not 7.5% of the demanded duty as confirmed by the order dated 10th October 2014 by the Commissioner of Customs (Export). This had to necessarily result in the dismissal of its appeal by the CESTAT. 14. No substantial question of law arises for determination. The appeal and the pending application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 and it is only when the applicant recovered from the financial losses that it could finally deposit the mandatory 7.5% of the duty amounting to Rs. 44,70,237/-, which according to the appellant is the statutory amount required to be deposited in terms of the amended provisions of Section 129A of the Customs Act. 8. Shri Sharad Tiwari, learned counsel of the applicant submitted that the order dated 07.07.2015 passed by the Tribunal, for the reasons stated in the application, should be recalled and the appeal should be restored to its original number. In support of this submission, learned counsel placed reliance upon the judgment of the Gujarat High Court in Hussein Haji Harun versus Union of India [ 1995 (77) E.L.T. 803 (Guj.) ] and upon the judgment of the Supreme Court in Kisaan Gramodyog Sansthan versus Commissioner of Central Excise, Kanpur [ 2015 (319) E.L.T. 370 (S.C.) ]. Learned counsel also emphasized that an incorrect submission was made on behalf of the appellant before the Tribunal and the Delhi High Court regarding the applicability of the un-amended provisions of Section 129A of the Customs Act instead of contending that the demand was highly infla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits : Provided that where an appeal has been 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 dismissal and restore the appeal . 13. A perusal of the said rule 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 statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal and hear it on merits as the applicant has deposited the statutory amount on 09.09.2020. 19. The judgment of the Supreme Court in Kissan Gramodyog Sansthan was rendered in view of the peculiar circumstances of the case and in fact in paragraph 13 of the judgment, the Supreme Court clarified that the order that was being passed shall shall not be treated as a precedent in any other case . 20. It is also necessary to deal to the alternative submission advanced by the learned authorized representative appearing for the Department that in any view of the matter, the applicant should have approached the Tribunal at the earliest opportunity. In this connection, learned authorized representative pointed out that this application has been filed after seven years of the dismissal of the appeal by the Tribunal and after five years of dismissal of the Civil Appeal by the Supreme Court. 21. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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