Customs, Excise and Gold Tribunal - Mumbai
Husain Haji Haroon vs Collector Of Customs (Prev.) on 26 August, 1987
Equivalent citations: 1989(24)ECR392(TRI.-MUMBAI), 1988(35)ELT371(TRI-MUMBAI)
ORDER K.S. Dilipsinhji, Member (T)
1. The applicant by his present application prays for restoration of his appeal which has been rejected for non-compliance with the provisions of Section 129E of the Customs Act under the Tribunal Order No. 1465/85-WRB dated 30-12-1985. On behalf of the applicants, Advocate Gajjar submitted that the applicant was a poor and illiterate person and he did not have any means to deposit Rs. one lakh which were directed by the Tribunal to be deposited under Tribunal's Order No. 409/85-WRB dated 15-4-1985 in the Stay Application No. 63/85 filed by the applicant. Besides the levy of penalty of Rs. 5,00,000/- the Collector of Customs, Ahmedabad has also confiscated the vessel MSV Pirani belonging to the applicant under Section 115(2) of the Customs Act. The vessel was, however, permitted redemption on payment of a fine of Rs. [,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. 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, .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 were provided under Sections 130 or 130E which were not attracted in the present instance. Hence there were no provisions of law which would come to the help of the applicant in restoring his appeal to the original file. Accordingly, Senthivel submitted that the application should be rejected.
3. We questioned Gajjar to find out as to under what provisions the applicant was praying for restoration of the appeal., Gajjar answered in the query half-heartedly pointing out to Rules 20 and 41 of the Customs, Excise & Gold (Control) Appellate Tribunal (Procedure) Rules, 1982. We find that Rule 20 is not applicable to the appeal in question as it was not dismissed for default on the part of the applicant and therefore the question of its restoration after satisfying the Tribunal regarding the applicant's non-appearance does not arise. Similarly, Rule 41 cannot come to the rescue of the applicant to provide justice to him. In fact, we agree with the learned SDR's contention that the Tribunal's order had become final in terms of Section 129B(4) of the Customs Act. The Act does not bestow the powers of review the Tribunal and it is not possible for us to restore the appeal to the original file as prayed by the applicant as that would tantamount to review of our own order No. 1465/85-WRB dated 30-12-1985. In these circumstances, we see no merit in this application and we reject the same.
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(K.S. Dilipsinhji) Member (Technical) Bombay, 3rd 3une, 1987 K. Gopal Hegde, Member (J)
4. I have had the advantage of going through the order proposed by brother Dilipsinhji. With great respect to brother Dilipsinhji, I am unable to persuade myself to agree with his conclusion that the restoration of the appeal which was rejected for non-deposit of the penalty amount would amount to review of the order of rejection and as such is not permissible in law.
5. The Collector of Customs, Ahmedabad, imposed a penalty of Rs. 5 lakhs on the applicant under Section 112 of the Customs Act. He also ordered confiscation of the vessel which belonged to the applicant but allowed redemption on payment of a fine of Rs. 1,75,000/-. The applicant challenged the above orders of the Collector before this Tribunal by filing an appeal CD(Bom) 109/85. During the pendency of that appeal, the appellant made an application for dispensation with pre-deposit of the 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 applicant nor his learned advocate appeared. No cause was also shown for non-deposit. Therefore the appeal was rejected in terms of Section 129-E of the Customs Act. Thereafter the present applicant filed the present application in February 1987 requesting for restoration of the appeal which was rejected for non-deposit.
6. Though in the application the applicant did not offer to make the deposit during the hearing of the application, his learned advocate offered to deposit the penalty amount directed to be deposited in the stay application.
7. The question for our consideration is whether granting of the prayer of the applicant tantamounts to review of the order dated 30-12-85 by which the appeal was rejected in terms of Section 129-E of the Customs Act. The contention of Senthivel for the respondent collector was that the order dated 30-12-1985 was the order in terms of Section 129-B and in terms of Section 129B(4) it had become final. There was no other provision of law which permits the Tribunal to set aside the order of rejection and to restore the appeal.
8. Gajjar on the other hand contended that the rejection of the appeal was for default of the appellant in not depositing the amount. Therefore the principles of Rule 20 of the Cegat Procedure Rules and also Rule 41 are attracted and the Tribunal has power and jurisdiction to restore such an appeal. Brother Dilipsinhji agreed with Senthivel's contention that the Tribunal's order had become final. He had further observed that the Act does not bestow the powers of review on the Tribunal and therefore it is not possible to restore the appeal to its original file.
9. The requirement of deposit of penalty during the pendency of the appeal is provided under Section 129-E. The said provisions are applicable to the appeals pending before the Collector (Appeals) as well as the appeals ending before the Appellate Tribunal. Both the Collector (Appeals) as well as the Tribunal has the discretion to dispense with the pre-deposit unconditionally or subject to such conditions as they may deem fit to impose so as to safeguard the interest of Revenue. Section 129-E in terms does not provide for rejection or dismissal of the appeal for non-deposit of the penalty amount or for non-deposit of the amount ordered to be deposited by the Collector (Appeals) or the Appellate Tribunal as the case may be. 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 AIR 1971 SC 2780 Pravin Chandra Purshottam v. 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-deposlt 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 ("ejection of the appeal of the present applicant for non-depbsjt of the penalty amount wais 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 in terms of Section 129-B. What is made final under Sub-Section (4) of Section l29-B is the order passed in terms of Section 129-ip and not any order passed under, Section 129-B. Further what Sub-Section (4) of Section 129-B implies is that no further appeal or revision lies against, the order made in terms of Section 129-B. Sub-Section Of) does not preclude the Tribunal from recalling its earlier order or even setting aside the, earlier order if the ends of justice require for passing of such an order.
12. The modification of the order made on the stay application is not considered as a review of the order earlier made. The order made on the stay application is trteated as an interlocutory order, if the circumstances warrant modification of the order, the Tribunal is not precluded from modifying its; earlier order. As a matter of fact, those are inumerable cases wherein the Tribunal granted extension of time to deposit the amount earlier ordered to be deposited. There are instances where even modification having been made in the quantum of amount ordered to be deposited. Further, the Tribunal has been entertaining appeals against the orders passed by the Collector (Appeals) rejecting appeal for non-deposit of the penalty amount. Such orders of the Collector (Appeals) are treated as orders made under Section 128-E. In such appeals Tribunal has jurisdiction to decide whether the Collector (Appeals) has properly exercised the discretion in the matter of deposit of penalty levied or duty demanded. If the Tribunal has jurisdiction to entertain appeals which were rejected by the Collector (Appeals) on the ground of non-deposit of the penalty amount levied or duty demanded, the Tribunal could certainly set aside its own order and restore the appeal rejected by it for non-deposit of the penalty levied or duty dernanded if the circumstances warrant.
13. If the Tribunal had no power to set aside its earlier, dismissal order, it would result in great injustice. Take a case of an appellant whose appeal was rejected after issue of show cause notice for non-production of proof of deposit of the' penalty files an application fore,setting aside the dismissal order on the plea that the amount had already been deposited within the time granted but due to some reason justifiable or not could not either report or bring to the notice of the Tribunal of the deposit earlier to the date 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 the earlier order of dismissal did not involve any decision. Therefore, question of review of the earlier decision would not arise.
16. Though Section 129-B in terms does not permit the Tribunal to dismiss the appeal for default of appearance of the appellant on the date of hearing, Rule 20 of the Cegat Procedure Rules provide for dismissal of the appeal for non-appearance of the appellant on the date of hearing. It is true that the proviso to the said Rule specifically provides for restoration of the appeal which has been rejected for default of the appellant. The absence of such a provision in my opinion would not debar the Tribunal from restoring the appeal which was rejected for non-deposit of the penalty amount or duty demanded. Rule 11 of the Cegat Procedure Rules empowers the Tribunal to reject the Memorandum of Appeal for non-production of the documents or for not carrying out the amendments, which the appellant was directed to file or carry out as the case may be. Neither Rule 11 nor any other Rule empowers the Tribunal to restore appeal which has been rejected in terms of Sub-rule (2) of Rule 11. Can it be said that the Tribunal has no jurisdiction to restore the appeal if the appellant complies with the requirement not within the time limit allowed, but subsequently? In my view, the Tribunal certainly has the power to restore such an appeal even though the production of documents or the amendments were made though not within the time allowed. Rule 41 of the Procedure Rules authorises the Tribunal to make such orders as it thinks necessary or expedient to secure the ends of justice. As has been observed by the Supreme Court in the case of Collector, Land Acquisition, Anantnag and Anr. v. MST. Katiji and Ors., 1987 (28) ELT 185 S.C. when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred. It was also observed by the Supreme Court in that case "it must be grasped that Judiciary is respected not on account of power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so". It is true that the above observations were made by the Supreme Court in the matter of condonation of delay in filing the appeal. But the observations aptly apply to the case on hand. There is no prohibition against restoration of an 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.
19. As there is difference of opinion between two Members, the records are submitted to the President for referring the point of difference to one or more Members of the Tribunal, as provided in Sub-Section (5) of Section!, 129-C of the Customs Act:
Point of Difference Whether restoration of the appeal dismissed for non-deposit of the penalty amount would amount to review of the earlier order and as such the application has no merit and therefore requires rejection as held by Member (T) OR The restoration of the appeal dismissed for non deposit of the penalty amount would not amount to review of the earlier order and on the facts and in the circumstances of the case the application should be allowed as held by Member (3). K.L. Rekhi, Member (T)
20. Because of the difference of opinion between the two learned Members of the West Regional Bench, the President assigned this matter to me for disposal under Section 129C(5) of the Customs Act, 1962. Notices of hearing were issued to both sides by registered post on 13-8-1987. Copies of judgments recorded by the two Members of the West Regional Bench and the points of difference were sent to both sides. Today was the date fixed for hearing on the point of difference at Bombay. S. Senthivel, SDR, is present on behalf of the respondent. Nobody is present on behalf of the applicant even though the notice was sent to him as well as to his advocate separately. I decided to proceed with the matter on merits.
21. Accordingly, I have heard the learned SDR, perused the written submissions of the applicant and the records of the matter, particularly the two orders recorded by the learned Members of the West Regional Bench. On careful consideration, I agree with the view taken by the learned Member (Technical). I hold that the Tribunal's order which dismissed the applicant's appeal for non-deposit of the amount which the Tribunal ordered to be deposited, even during the extended period, was not an interim order but a final order under Section 129B(4) of the Customs Act, 1962. The appellant had been issued a show cause notice when he failed to deposit the amount at the end of the extended period. On the date of hearing of the show cause notice, the applicant neither appeared in person nor sent any written representation or request. It would have been a different matter if the appeal would have 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 disfioissal 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 Tribu-nal 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.
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(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.