TMI Blog1988 (3) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... . The persons concerned were another [sic] 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 19-10-1984, the Collector Customs (Preventive) Gujarat, Ahmedabad passed an order dated 26-10-1984. 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 Rs. 1,75,000/- in lieu of confiscation. By the said order, a personal penalty under Sec. 112 of the Customs Act was also imposed on the petitioner, amounting to Rs. 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 Rs. 5 lacs. The petitioner was directed to deposit a sum of Rs. 1 lac and for the said purpose, two months' time was granted by the order dated 15-4-1985. Ultimately, the petitioner could not make the said depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed as per the final Order dated 26-8-1987. 3The aforesaid Special Civ.il Application No. 2727 of 1986 was filed on or about 19-5-1986 and in the said petition, amongst other things, quashing and setting aside order dated 20-12-1985, Annexure 'C', was prayed. The aforesaid Special Civil Application No. 2515 of 1987 was filed on or about 2-6-1987. In the original petition, it was prayed that the aforesaid order of the Tribunal, rejecting the aforesaid Application No. 36 of 1986 should be set aside and the appellate Tribunal should be directed to accept the said sum of Rs. 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 9-12-1987. 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 Rs. 1,75,000/- as redemption fine imposed on his aforesaid vessel and had also paid the amount of Rs. 1 lac towards the penalty amount and had also executed guarantee to the extent of Rs. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 the 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 dismissal of the appeal for non-appearance of the appellant on the date of hearing. It is also true that the proviso to the said Rule specifically provides for restoration of the appeal which has been dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 required to be set aside. Question No. 2 6.As we have seen, by the order dated 20-12-1985 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 non-deposit and it was in those circumstances that the entire appeal was dismissed. The order does not show that it was appreciated by the learned Members that the appeal that they were dismissing on the ground t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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