TMI Blog2007 (10) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... for non-compliance of the direction of pre-deposit, itself is not an order on merits, it is his submission that such order can be re-called and the appeal can be restored. It is his further submission that the stay applications when decided by the Bench, directed the appellants to deposit an amount of Rs. 40 lakhs. He submits that the appellants had already deposited an amount of Rs. 50 lakhs and further deposit of Rs. 40 lakhs was difficult as the appellant was in the financial crises. He submits that there is change in circumstances as Mumbai Debt Recovery Tribunal has passed an order and issued recovery certificate against the company. He submits that the premises of the appellant have been taken over by the authorities on the directions of the Mumbai Debt Recovery Tribunal. it is his submission that as on today there is a change in circumstances, which warrants reconsideration of the conditions of pre-deposit, passed at the first instance on an application filed by the appellants for waiver of pre-deposit of the amount involved. He relies upon the following case laws for the above two propositions (a) Hussein Haji Harun v. UOI - 1995 (77) E.L.T. 803 (Guj.) (1) Maine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. 803 (Guj.) was considering an identical question and held as under :- "As noted above, the appeal was dismissed for non-deposit of penalty amount. The question is whether the restoration of such an appeal would amount to reviewing the earlier order. Such an order of dismissal can hardly be regarded as a final order under Sec. 129B(4) of the Customs Act, 1962. The learned Judicial Member has rightly observed in his order that the Tribunal has been entertaining appeals against the orders passed by the Collector (Appeals) r the appeal for non-deposit of the penalty amount; that such orders of the Collector (Appeals) are treated as orders made under Section 128A, that in such appeals the Tribunal has jurisdiction to entertain appeals which were rejected by the Collector (Appeals) on the ground of non-deposit of the penalty levied or duty demanded; and that if the Tribunal has such jurisdiction then the Tribunal can certainly set aside its orders and restore the appeal rejected by it for non-deposit of the penalty levied or duty demanded, if the circumstances warranted such a course. It cannot be gainsaid that when the Act or the Rules in question do not specifically prohibit resto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on authorising the restoring of an appeal dismissed on the ground that the amount of penalty has not been paid, the Tribunal was powerless to restore such an appeal. We are unable to agree with the aforesaid majority view because such orders passed in cases where the amount of penalty has not been paid are not final orders. Such a construction would lead to injustice and would not further the ends of justice. What would happen in a given case where an appeal was dismissed for non-production of proof of deposit of penalty and it turned out in an application for restoration of such an appeal that the amount had already been deposited within the time granted but for some reason the same could not be reported or brought to the notice of the Tribunal before the appeal came to be dismissed on the ground of non-production of proof of deposit of penalty ? As per majority view, it would be a helpless situation since they had no power to restore even such an appeal. Such a construction would obviously defeat the ends of justice because it would amount to taking too technical a view of the matter just because there is absence of a positive provision authorising the Tribunal to restore such an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . SDR that there cannot be any modification in the stay order revolves around the decision of the Hon'ble High Court of Karnataka in the case of Mc Dowell Co. Ltd., (supra) and the decision of the Hon'ble High Court in the case of Baron International Ltd., (supra). The applicant company is conducting business in the State of Maharashtra and falls under the jurisdiction of the Hon'ble High Court of Bombay and hence, will be covered by the judgments and decisions of the jurisdictional High Court i.e., Hon'ble High Court of Judicature at Bombay. The Hon'ble High Court of Judicature at Bombay in the case of Baron International Ltd., (supra) has undoubtedly held that the Tribunal ought to have refused to entertain such application for prima facie case warranting modification of the earlier order. At the same time their Lordship in the very same judgment in paragraph S also held as under ;- "Our experience shows that in almost all the applications moved to seek modification of the Tribunal's order contain only grounds of review. They are freely entertained by the CEGAT and the same are sometime accepted or rejected on merits with detailed order. Such exercise, apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. In the application for modification she filed income-tax returns for the years 2001-2002, 2002-2003 and 2003-2004 along with the auditor's for the balance sheet as on 31-3-2004 showing that she did not have sufficient income. Baron International Ltd., reference of which has been made by the Tribunal in its order dated 22-4-2004 does not hold that the Tribunal cannot mod its order, In Baron International Ltd., the Division Bench of this Court though held that the Tribunal cannot exercise review jurisdiction but the party before the Tribunal can always seek modification of the order. It would be, thus, seen that the Tribunal had jurisdiction to modify its order dated 11-2-2004 , within the permissible limits and parameters laid down in law. Moreover, the Tribunal's order dated 29-10-2002 in the case of M/s. R.K. Impex AK. More justify the dispensation of pre-deposit in the present case." (emphasis supplied) 9. It is on careful reading of the above said two judgments of the Hon'ble High Court of Judicature at Bombay, it is noted that the judgment of their Lordship in the case of Maina Khemka directly covers issue before us. Hon'ble High Court has held that ..... 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