TMI Blog2010 (12) TMI 698X X X X Extracts X X X X X X X X Extracts X X X X ..... 01 - - - Dated:- 16-12-2010 - S. Nagamuthu, J. REPRESENTED BY : Shri C. Saravan, for the Petitioner. Shri K. Ramakrishna Reddy, SCGC, for the Respondent. [Order (Common)]. The petitioner in W.P. No. 23999 is a company known as Plant Organics Limited, which is governed by the Companies Act. The petitioner in W.P. No. 23998 of 2001 is the Managing Director of the said company. The petitioner company is a manufacturer and exporter of bulk drugs namely Ciprofloaxacin HCL, Ciprofloaxacin Acid and Enrofloxacin. The petitioner company was operating under Notification No. 149/95-Cus., dated 19-9-1995. The petitioner company was granted Advance Licences to import certain inputs duty free to manufacture the above said drugs for export purpose under licence Nos. 147899 [Ciprofloaxacin HCL] dated 26-12-1995; 26350 [Ciprofloaxacin Acid] dated 26-11-1996; 9000302 [Ciprofloaxacin] dated 28-11-1997; and 9000304 [Enrofloxacin] dated 28-11-1997. During the years 1995-96 and 1996-97, according to the petitioners, the demand for Ciprofloaxacin HCL and Ciproflaxacin Acid was very low and therefore, the petitioner company was unable to proceed to manufacture them. However, according ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 60 lakhs as a condition to entertain the Appeals Nos. 305 and 306 of 2000. But, the petitioner did not comply with the said condition. Therefore, the appeals were rejected by the 1st respondent. 2. Subsequently, the petitioners in these writ petitions filed two separate applications in C/ROA/43 and 44/2001 in Appeal No. C/305/306/2001. The prayer in those applications are to recall the final order as well as the said interim orders and to modify the said order granting full waiver of pre-deposit of demanded duty amount. By a common order, both the applications were dismissed by the 1st respondent on 24-9-2001. Challenging the same, the petitioner company has come up with W.P. No. 23999 of 2001 and its Managing Director has come up with W.P. No. 23998 of 2001. 3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and also perused the records carefully. 4. Indisputably, as against the order in Original No. 28/2000 (CAU) dated 28-3-2000 passed by the 2nd respondent, appeal Nos. 305 306 of 2000 were filed. But, for entertaining such appeals as provided in Section 129E of the Act, the entire amount demanded as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above submissions on this ground. Before going to have further discussions on this, it would be worthwhile to extract Sections 129-E and 129-B of the Act. 8. Section 129-E of the Act reads as under :- 129E. Deposit, pending appeal, of duty and interest demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. 9. Section 129-B of the Act reads as under :- 129-B. or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for passing any order. 11. If once such appeals have been rejected for non-compliance of Section 129-E, the question is whether by invoking Section 129B(2) of the Act, the appellate tribunal has got power to recall the order. A perusal of sub-section 2 of Section 129-B would go to show that it enables the Appellate Tribunal to rectify any mistake apparent from the record or amend any order passed by it under sub-section (1). In this case, there was no order made under Section 129-B(1) of the Act. Further, the learned counsel for the petitioners is not able to show as to what is the patent mistake in the order rejecting the appeals. The orders of rejection of appeals, in these cases, have been made strictly in accordance with law because under Section 129-E of the Act, if no pre-deposit is made, appeal is liable to be rejected. Therefore, it cannot be stated that there has occurred any mistake, that too, apparent from the record warranting any rectification by invoking the power under Section 129-B(2) of the Act. Therefore, in my considered opinion, the applications filed by the petitioners before the Appellate Tribunal which resulted in the impugned orders are wholly without j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is not complied with, the appellate tribunal has got no other power or discretion except to reject the appeals. That is what has been rightly done by the appellate tribunal in the instant cases. Therefore, after such orders have been passed, which have put a finality to the proceedings, it is not all open for the appellate tribunal to entertain the Applications under Section 129-B(2) of the Act to recall its own orders. Though the Appellate Tribunal has rejected these applications on different grounds and even assuming that the grounds on which the applications have been rejected by the Appellate Tribunal are not sustainable, in my considered opinion, the ultimate orders rejecting the applications cannot be interfered with inasmuch as the applications ought not to have been entertained by the Appellate Tribunal for want of jurisdiction. In such circumstances, I do not find any reason to interfere with the impugned common orders passed by the appellate tribunal. 16. The learned counsel for the petitioners would at this juncture make a request to this Court to clarify the position that the petitioners have got right to challenge the interim orders passed under the first provis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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