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M/s. Picasso Overseas, Mumbai- 7 Versus The Customs, Excise and Service Tax Appellate Tribunal, The Commissioner of Customs (Appeals) , The Assistant Commissioner of Customs (Gr. 5B)

2016 (4) TMI 183 - MADRAS HIGH COURT

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 with at any point of time, say for instance even nearly after two year .....

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ccepted 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 that no finality attaches to an interim order, cannot be accepted. In .....

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ms 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 bills of entry are compact fluorescent lamps with choke. As against th .....

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uced 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 Division Bench. The relevant portions of the judgment of the Division Bench .....

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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 is dismissed confirming the order dated 12.11.2009 passed by the learn .....

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e 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 dismissed as a consequence of non compliance with the conditional order .....

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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 are non est in the eye of law. In such circumstances, it is the further .....

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e 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 Supreme Court held that the assessment made on the basis of wrong appreciat .....

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torage 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 be treated on par with cases of this nature. 13. The next decision rel .....

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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 relied upon two decisions, one of the Karnataka High Court and anothe .....

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lways 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 29 of the decision of the Calcutta High Court reads as follows : &quo .....

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use 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 application for extension of time. Many times, conditional orders are .....

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