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2016 (4) TMI 183 - MADRAS HIGH COURT

2016 (4) TMI 183 - MADRAS HIGH COURT - 2016 (337) E.L.T. 217 (Mad.) - Challenging dismissal of appeal - Non-compliance of conditional order - Held that:- it is possible for the Tribunal to tinker with its earlier order either without an application for modification or without an application for extension of time. Many times, conditional orders are passed as self working orders. It does not mean that a conditional order, passed not as a self working order, will always remain alive to be tinkered .....

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. Therefore, even if the law laid down by the Calcutta High Court is accepted by the Tribunal to reflect the correct position in law, the Tribunal could not have modified the order passed by this Court. - Once a conditional order passed by the Tribunal attains a finality, the same cannot be annulled after a consequential order is passed. The conditional order was neither challenged by way of an appeal nor an application for extension of time or for modification was ever filed. The contention .....

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masubramanian, J This appeal is filed, under Section 130A of the Customs Act, 1962, by the assessee, challenging the dismissal of their appeal by the Tribunal for their failure to comply with an order to make a pre-deposit. 2. Heard Mr.S.Murugappan, learned counsel for the appellant. 3. By an Order in Original dated 13.5.2004, the Assistant Commissioner of Customs imposed upon the appellant the differential anti dumping duty of ₹ 2,73,31,320/- holding that the goods imported under certain .....

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, a learned Judge of this Court modified the pre-deposit order and reduced the amount to be paid to ₹ 75 lakhs, which is almost 1/3rd of what the Tribunal had ordered. 5. The said order of the learned Judge was taken on appeal to the Division Bench and the Division Bench originally granted a stay on 12.1.2010 in W.A.No.30 of 2010 directing the Tribunal not to dismiss the appeal until further orders. The said writ appeal was subsequently dismissed by a judgment dated 31.7.2013 by the Divisi .....

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al has recorded factual findings that the said hardship pleaded by the appellants on the basis of balance sheet for 2001-02 is not sufficient. Only considering the financial difficulties expressed by the appellant, the learned Single Judge directed the appellant to deposit ₹ 75 lakhs. The appellant has not produced any further material to establish undue hardship. We do not find any reason warranting interference of the order of the learned Single Judge. 18. In the result, the writ appeal .....

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order that the assessee has come up with the above appeal. 7. The above narration of facts would show that the original conditional order passed by the Tribunal was on 7.9.2009. It stood modified by an order of the learned Judge of this Court in a writ petition, passed on 12.11.2009. That order of the learned Single Judge was confirmed by the Division Bench on 31.7.2013. 8. Without any effort on the part of the appellant, the appeal somehow survived before the Tribunal without getting formally d .....

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ter the judgment of the Division Bench dated 31.7.2013. 9. Despite the above facts, which stare at one's face, it is sought to be contended by the learned counsel for the appellant that by a subsequent decision rendered by the Supreme Court, the law is now settled in favour of the assessee. Since what was done by the Supreme Court was actually a declaration of law, it is deemed to be the law at all points of time. Hence, his contention is that the Order in Original and the order in appeal ar .....

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ppellant, the Supreme Court was concerned with a case where an assessee filed an application for rectification under Section 254(2) of the Act, after the declaration of law in favour of the assessee. It was in such circumstances that the Supreme Court held that once a law is declared by the Supreme Court, it shall be deemed to be the law that was always in force and that therefore, when an application for rectification is filed, the concerned Authority was obliged to correct the error. The Supre .....

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hout any effort on the part of the appellant, the appeal was in cold storage from 31.7.2013 with the appeal not surfacing for hearing. The order of the Tribunal dated 7.9.2009, as modified by the order of the learned Single Judge of this Court dated 12.11.2009 and as confirmed by the judgment of the Division Bench dated 31.7.2013 have all attained finality. Therefore, a case where an application for rectification was filed after the change of law, when the proceedings were still pending, cannot .....

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was a possibility for the mistake being rectified under Section 35 of the Act in question. Therefore, that is also a case, which is not comparable to the one on hand. 15. The next contention of the learned counsel for the appellant is that even in cases where there is a failure on the part of the assessee to comply with the conditional order, it is not open to the Tribunal to mechanically dismiss the appeal for non compliance. In support of this contention, the learned counsel for the appellant .....

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comply with the order. Once such a plea is raised, the Tribunal can always consider the same and pass an order on merits either accepting or rejecting. 17. In the next decision in CCE Vs. Shree Govinddeo Glass Works Ltd. [(2011) 263 ELT 178], the Calcutta High Court went one more step than the Karnataka High Court and held in paragraph 29 of its decision that it was open to the Tribunal on the date fixed for the hearing of the appeal even to modify its earlier order or annul the same. Paragraph .....

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use is shown, the Tribunal will consider the same and if sufficient cause is to be found, then Tribunal can exercise all discretion and may extend the period or may reconsider the question of dispensation of pre-deposit on subsequent event or fresh materials having been placed after earlier order having been passed." 18. But, with great respect, we do not think that it is possible for the Tribunal to tinker with its earlier order either without an application for modification or without an .....

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