ETK SOFTECH (P) LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) These applications, filed by the appellants in Appeal Nos. C/116, 118 and 119/2002, pray for recall of our Miscellaneous Order Nos. 228 -235/2004, dated 19 -4 -2004.

(2.) On 19 -4 -2004, the three appeals had arisen along with other connected appeals, for final hearing. The Senior Counsel for the appellants (present applicants) was not present on that day. Her junior prayed for adjournment of hearing on a ground which we have noted in our order dated 19 -4 -2004. After considering the said ground and other aspects of the case, we granted adjournment of hearing, but on condition that an amount of Rs. 1.00 crore (Rupees one crore only) each be paid by the two applicants for the purpose of Section 129E of the Customs Act. In the present applications, it is stated to the effect that the applicants are incapable of depositing the amount. It is further stated that their Senior Counsel happened to be absent before the Bench on 19 -4 -2004 on account of her pre -occupation with some High Court case. These grounds, which are also seen to have been stated in the affidavit filed in support of the applications, have been reiterated by learned Senior Counsel for the parties. Learned Senior Counsel has also pointed out, with reference to the Supreme Court's ruling in the J.K. Synthetics Ltd. v. Collector of Central Excise [1996 (86) E.L.T. 472 = (1996) 6 SCC 92], that we have ample powers under Rule 41 of the CESTAT (Procedure) Rules, 1982 to recall the order passed on 19 -4 -2004. We have also heard learned Senior Counsel Shri M. Chandrasekharan, representing the Revenue. He relies on a later decision of the Supreme Court in Budhia Swain and Ors. v. Gopinath Deb and Ors. - (1999) 4 SCC 396 and submits that the powers of this Tribunal for recall of any order are circumscribed by the norms set by the Apex Court in Para 8 of its judgment. The relevant portion of Para 8 ibid is extracted below : -

(3.) We have given careful consideration to the rival arguments. At the outset, we may state that the reason given in the present applications, for non -appearance of the Senior Counsel on 19 -4 -2004 is glaringly at variance with that stated by her junior on that day. Nevertheless, in a broader view of the matter, we are inclined to accept the submissions made today by the Senior Counsel for the applicants. These submissions, duly supported by affidavit of the party, are to the effect that the Senior Counsel was held up in the High Court on that day and hence could not appear before us. The question now is whether we have the power to recall our order of 19 -4 -2004 under Rule 41 ibid. That order was not an order dismissing the appeals of the applicants. It was an order granting adjournment as prayed for by them. The order, however, stipulated a condition, which was that an amount of Rs. 1.00 crore each be deposited by the two applicants for the purpose of Section 129E of the Customs Act. This condition was imposed, incidentally, for the further purpose of preventing abuse of the process of this Tribunal under Rule 41 ibid. The adjournment of hearing in the appeals is not under challenge in these applications. What has worried the parties is the aforesaid condition which was imposed under Section 129E and Rule 41. After carefully considering the judgment of the Hon'ble Supreme Court in J.K. Synthetics Ltd. (supra) cited by learned Senior Counsel for the appellants, we are satisfied that we have the inherent power to do so. The decision of the Hon'ble Supreme Court cited by learned Senior Counsel for the Revenue has also been perused. That judgment apparently deals with the inherent powers of courts as embodied under Section 151 of the Civil Procedure Code. While dealing with that power, their lordships laid down the norms, which we have reproduced earlier in this order, for Courts as well as tribunals in the matter of recalling ex parte orders. The norm mentioned at (iii) above indicates that the Tribunal may recall an order earlier made by it if there has been a mistake of the Tribunal prejudicing a party. The tenor of the present applications and the submissions made by learned Senior Counsel representing them is that our condition for deposit of Rs. 1.00 crore each has prejudiced them. In view of these aspects, it cannot be said that the present matter does not fall in the realm of the aforesaid norms set by the Apex Court in the case cited by learned Senior Counsel for the Revenue. We have noticed that our order dated 19 -4 -2004, which was consequential to a default of the counsel, is prejudicial to her clients by reason of the condition for deposit stipulated in the order.