SATISH D. GANATRA Vs. COMMISSIONER OF CUSTOMS, CALCUTTA

JUDGEMENT

(1.) THE present Miscellaneous Applications are for restoration of appeals which stand dismissed by the Tribunal vide Order Nos. A -1324 -1325/1999 -Culcutta, dated 21 -12 -1999. The said dismissal was on the ground that appellants were directed vide Stay order dated 18 -5 -1999 to deposit an amount of Rs. 1.5 lac each towards penalty amount out of the total penalty amount of Rs. 7.5 lacs imposed on each applicant as pre -condition of hearing of the appellants appeal. After passing of the said order the applicants forwarded two miscellaneous applications which were also disposed by the Tribunal vide its order Nos. M -710 -711, dated 22 -9 -1999 but in the interest of justice the period to deposit was extended upto 15 -11 -1999. However instead of complying with the said order, the applicants moved another application for modification of the order. The said modification application was taken up for disposal vide the above referred order dated 21 -12 -1999. After rejecting the request of the appellants, the appeals were also dismissed for non -compliance of provisions of Section 129E of the Act.

(2.) SHRI J. Lewis, learned Advocate appearing for the applicants argues on the point of financial hardship as also on the merits of the case. We find that in the first order passed by the Tribunal dated 18 -5 -1999, merits as well as financial hardship was taken into consideration. The appellants are required to deposit the entire amount of penalties levied upon them under the provisions of Section 129E unless the same are dispensed with by the Tribunal. As such the Tribunal passed the said order reducing the quantum of penalties required to be deposited as a pre -condition of hearing the appeals, from Rs. 7.5 lacs to Rs. 1.5 lac each. Period for deposit was also extended subsequently in the interest of justice. However, it was subsequently found that no deposit was made by the appellants. Learned Advocate also places on record the Judgment of the Honble Bombay High Court reported in 1998 (103) E.L.T. 218 (Bom.). We have seen the said judgment. In para 9 of the judgment it is recorded that the Tribunals order which was before the Lordship was the one vide which appeal filed before Tribunal was dismissed as a result of non -appearance of the petitioners before the Tribunal. As such we find that the ratio of the same is not applicable to the present case. We cannot accept the argument of the learned Advocate that their appeals should not have been dismissed for non -compliance with the provisions of Section 129E read with Stay Order but should have been disposed of after hearing the appeals on merits. It is made clear that the appellants right to file the appeal and pursue the same before Tribunal is subject to the condition of pre -deposit under Section 129E of the Customs Act and they were required to cross the above obstacle under the law before their appeals could be disposed of on merits. This having not been done by them, we do not find any justifiable reason for restoring the appeals.

(3.) AT this stage we also observe that the Honble Gujarat High Court reported in 1995 (77) E.L.T. 803 (Guj.) in the case of Hussein Haji Harun v. U.O.I. holding that the appeal dismissed for non -compliance can be restored inasmuch as the Tribunal has an inherent power. There cannot be any quarral about the above legal position as laid down by their Lordship. But we note that in the case before the Honble High Court the appellants had deposited the amount of Rs. 1.0 lac out of the penalty of Rs. 5.0 lac directed to be deposited by the Tribunal and also paid the entire amount of redemption fine. It was observed by the Lordship in para 7 that this weighty subsequent circumstances cannot be ignored while hearing the Special Civil Application. It was also observed in para 5 of the said judgment that the Tribunal has the power and jurisdiction to recall its earlier order, if the ends of justice require such a course of action. However, in the instant case we find that the appellants have not deposited even a single penny till date in spite of the directions of the Tribunal and the subsequent extension of the period to do so. We also note that the extended period to deposit expired on 15 -11 -1999 and the second modification application was filed on 13 -12 -1999 almost after one month of expiry so granted by the Tribunal. As such no justifiable reason exists so as to recall the dismissal order and dispose of the appeals on merits without ascertaining compliance with the Stay Order.