TMI Blog1988 (3) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... so asked to show cause as to why the vessel MSV PIRANI MNV 192 should not be confiscated under the provisions of the Customs Act, 1962. The persons concerned were also asked to show cause as to why a penalty to the extent permissible should not be imposed on each one of them. After giving a personal hearing on 19-10-84, Collector Customs (Preventive) Gujarat, Ahmedabad passed an order dt. 26-10-84. So far as the present petitioner is concerned he was affected by the said order inasmuch as the aforesaid ship was ordered to be confiscated. The Collector, however, allowed redemption of the said ship on payment of a fine of ₹ 1,75,000/- in lieu of confiscation. By the said order, a personal penalty under S.112 of the Customs Act was also imposed on the petitioner, amounting to ₹ 5 lacs. Being aggrieved by the said order, the petitioner had preferred an appeal before the Customs, Excise and Gold (Control) Appellate Tribunal, being Appeal No. 109 of 1985. After filing the said appeal, an application for stay was filed by the petitioner in the said appeal against the penalty amount of ₹ 5 lacs. The petitioner was directed to deposit a sum of ₹ 1 lac and for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the appeal had no merit and so he ordered dismissal of the same. Thus, pursuant to the majority view, the application for restoration failed as per the final order dated 26-8-87. 4. The aforesaid Special Civil Application No. 2727 of 1986 was filed on or about 19-5-86 and in the said petition, amongst other things, quashing and setting aside the said order dt. 20-10-85, Annexure-C, was prayed. The aforesaid Special Civil Application No. 2525 of 1987 was filed on or about 2-6-87. In the original petition, it was prayed that the aforesaid order of the Tribunal, rejecting the aforesaid application No. 36 of 1986 dt. 29-5-87, Annexure-D, should be set aside and the Appellate Tribunal should be directed to accept the said sum of ₹ 1 lac by way of deposit and to restore the said appeal on file and dispose of the same on merits. In this Special Civil Application No. 2515 of 1987, a Misc. Application No. 372 of 1987 was filed, seeking leave to amend the main petition. That leave was granted on 9-12-87. By virtue of the said amendment, the petitioner has brought to light certain other relevant facts. He has stated that he had paid the entire amount of ₹ 1,75,400/- as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of the penalty amount; that such orders of the Collector (Appeals) are treated as orders made under S.128-A; 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 restoration of an appeal dismissed on the ground of non-deposit of the penalty amount, the Tribunal certainly has the power and jurisdiction to recall its earlier order, if the ends of justice require such a course of action. It is more so because while dismissing appeal on the ground of non-deposit of the penalty amount, the Tribunal did not determine any issue or dispute and so there was no question of reviewing the earlier decision in the present case. Rule 20 of the Customs, Excise and Gold (Control) Appellate Tribunal Procedure Rules, 1982 provides for di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 appeal. We are, therefore, of the view that the order rejecting the application for restoration of the said appeal requires to be interfered with and requires to be set aside. Question No. 2 : 7. As we have seen, by the order dated 20-12-85 the said Appeal No. 109 of 1985 was dismissed. Reading the said order, it also becomes clear that the entire appeal was dismissed on the ground that the appellant as well as his Advocate were absent and that there was no intimation of the deposit having been made and further that no cause was also shown for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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