TMI Blog2020 (11) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no dispute that none appeared for the petitioner on 18-10-2016 when the appeal was listed for orders on an application filed for recall of the order dated 2-2-2016. The CESTAT s order is not an order of modification or confirmation or annulling, or an order of remanding. The impugned orders will have to be set aside and the appeal restored for fresh disposal as contemplated under Section 129B of the Customs Act leaving it open to the parties to urge their respective grounds before the CESTAT. Further, given the facts and circumstances of the case, it would also be just and reasonable to restore the petitioner s application for recall of the interim order dated 2-2-2016. Petition allowed in part. - Writ Petition No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to send the compliance report before 13-4-2016. Perusal of the records shows that they have not complied with the directions of the CESTAT regarding deposit of 50% of the duty confirmed and also 50% of the penalty imposed on the appellant. Instead of complying with the directions of the CESTAT, they have simply moved an application for setting aside the ex parte decision. Today nobody has appeared to argue the case even on miscellaneous applications which are fixed for disposal. In view of these facts we are of the considered opinion that the appellants have not intentionally complied with the Stay Order dated 2-2-2016 passed by the CESTAT. In view of non-compliance of the Stay Order, all the appeals are dismissed. The CESTAT has dism ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for stay of proceedings. The petitioner bona fide believed that the Learned Counsel on record would appear and argue in support of the application. However, none appeared on behalf of the petitioner and consequentially, the CESTAT passed orders on 2-2-2016 directing the petitioner and its directors to deposit 50% of the demand and penalty respectively within a period of eight weeks with a further direction that the compliance must be reported on 13-4-2016. 5. The petitioner on being informed about the interim order dated 2-2-2016, requested its Learned Counsel to make necessary application. Accordingly, an application was made on 25-2-2016 before the lapse of the time granted by the CESTAT for deposit of 50% of the demand and pena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory provisions of Section 129B of the Customs Act would prevail over the aforesaid rule. As such, the CESTAT could not have dismissed the petitioner s appeal. The Learned Counsel in support of this proposition relies upon the decision of the Hon ble Supreme Court in Balaji Steel Re-rolling Mills v. Commissioner of Central Excise and Customs [2014 (310) E.L.T. 209 (S.C.) = 2014 (36) S.T.R. 1201 (S.C.)]. 8. The Learned Counsel for the respondents submits that the petitioner is not bona fide in relying upon the Counsel s absence for dismissal of the appeal on merits as well as rejection of the application for recall of the order dated 2-2-2016. The authorities initiated proceedings against the petitioner, and its Directors, way ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal is dismissed on the ground that the petitioner did not deposit 50% of the demand in terms of the order dated 2-2-2016. It must also be mentioned that the directors of the petitioner s company also did not deposit 50% of the penalty imposed on them, and further it must also be mentioned that there is no dispute that none appeared for the petitioner on 18-10-2016 when the appeal was listed for orders on an application filed for recall of the order dated 2-2-2016. The CESTAT s order is not an order of modification or confirmation or annulling, or an order of remanding. The CESTAT s order is not in consonance with the provisions of Section 129B of the Customs Act, and would be impermissible in the light of the decision by the Hon ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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