TMI Blog2022 (8) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... h the condition imposed on 30.04.2015, the appeal is dismissed. When an application is filed to recall, several decisions are referred to and for the reasons already excerpted the Tribunal made the order dated 06.01.2017. The Tribunal proceeded on the grounds available for review of the order without appreciating the inherent error in exercise of its jurisdiction. The orders dated 06.01.2017 and 13.07.2015 are ex facie illegal and unavailable in the circumstances of the case. Thus, the appeal filed by the appellant before the CESTAT resulted in dismissal for unavailable grounds and reasons. With the comprehensive consideration of both substantial questions of law, the ground is made out for our interference. The questions are answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he orders impugned in the instant appeal. 2.1 On 10.07.2012, the Commissioner of Customs (Preventive) issued show cause notice under Section 124 and 28(4) of the Act to the appellant herein, M/s. ASEAN Cable Ship Pte Ltd, Singapore, and Mr Too Taik Leong, Master of ASEAN Explorer. We are not referring to the reasons for prompting the issue of show cause notice and the reply of either the appellant herein or other recipients noted by the Commissioner. It would be sufficient to state that the Commissioner of Customs (Preventive) on 04.04.2013 passed order of penalty under Sections 111(d) and 112(a) of the Act demanding the following amounts from the three entities referred to above. i) I order confiscation of the vessel C.S.ASEAN Explo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri. Too Taik Leong. master of the vessel CS. ASEAN Explorer under section 112(a) of the Customs Act 1962. viii) I impose a penalty of Rs. 1,00,00,000/- (Rupees One Crore only) on M/s. Forbes and Company Ltd., under section 112(a) of the Customs Act 1962. ix) I order that the Bank Guarantee of Rs.46.26 crores submitted by M/s ASEAN Cable Ship Pte Ltd. shall be invoked and adjusted against the duty, interest, fine and penalty payable. 2.2 The appellant filed Appeal No.C/27184/2013-DB before the CESTAT. It is not in dispute that M/s. ASEAN Cable Ship Pte Ltd. filed appeal, and the appeal is numbered as Customs Appeal No.27102/2013. The CESTAT vide order dated 18.02.2020 allowed the appeal filed by M/s. ASEAN Cable Ship Pte Ltd, aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny valid reason for not taking the action during the intervening period. We accordingly dismiss the appeal for non-compliance with the stay order referred supra. 2.5 Thereafter, the appellant filed Miscellaneous Application C/ROM/21353/2015 for setting aside or recalling the orders dated 13.07.2015 and 30.04.2015 by granting stay pending appeal without condition. The said application was dismissed, and the operative portion reads thus: 3. We have considered submissions of both the parties and perused the record and also have considered the judgment cited at bar. The Tribunal vide order dated 30.4.2015 dismissed the stay application by observing that none have been appearing to defend the case of the appellant and directed the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d disposal of the appeal? (b) Whether, in the peculiar facts and circumstances of the case, the Tribunal below ought to have held that the power of review and rectification are distinct, though ground is common (error apparent on the face of the record) and that the matter sought to be rectified is a manifest one which could admit of no dispute? 4. Advocate Dona Mary argues that the Tribunal fell in a serious error of law in passing the orders dated 30.04.2015, 13.07.2015 and 06.01.2017. The illegality pointed out in the exercise of jurisdiction by the Tribunal is that on 30.04.2015, assuming without admitting that the counsel appearing for the appellant was absent when the stay petition was called before the Tribunal, the Tribunal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an order impugned before it, grant a stay and impose conditions, or dismiss the application for non-prosecution. The order dated 30.04.2015 does not fall under any one of the categories. Normally a condition is imposed while granting stay of an order or a decree, the execution of which is suspended by a superior court/Tribunal. The dismissal of stay petition, at best, may expose the appellant or a part to the lis to the threat of execution of the executable order. In the absence of a stay order, the primary authority is not precluded from realizing the amount demanded in the order confirmed by the primary authority. 6.1 Strangely for reasons not discernible from the order dated 30.04.2015 the appellant, while suffering an order of dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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