2015 (1) TMI 620 - HC - Customs

Kerala High Court allows fresh appeal after dismissal for failure to remit pre-deposit

CHONAKADAVATH MOHAMMED Versus ADDL. COMMR. OF CUS., AIRPORT, MUMBAI

The High Court of Kerala allowed the petitioner to file a fresh appeal within a specified timeframe after the dismissal of the original appeal due to ... Restoration of appeal - Appeal dismissed in 1989 for non compliance with pre deposit order - Held that:- It appears that the petitioner himself was negligent in pursuing the appeal. For the laches, I impose a cost of ₹ 5,000/- which shall be paid to the learned counsel for the respondent within two weeks from the date of receipt of a copy of this judgement. It appears that the petitioner was not aware of disposal of the appeal and remitting the appeal to challenge the appellate order after keeping the case pending for a decade in this court will not enure to the benefit of the parties. - Petition disposed of. Issues:1. Failure to remit pre-deposit leading to dismissal of appeal2. Destruction of records after five years3. Maintainability of writ petition for reconstitution of appeal4. Application of Section 129E of the Act5. Imposition of cost for negligence in pursuing appealIssue 1: Failure to remit pre-deposit leading to dismissal of appealThe writ petitioner filed a petition seeking directions to grant leave to constitute a fresh appeal and consider Appeal No. 567/1985 pending before the Customs, Excise and Gold (Control) Appellate Tribunal. The appeal was dismissed in 1989 due to non-remittance of the mandatory pre-deposit, which resulted in the destruction of records after five years. The petitioner expressed readiness to deposit the statutory amount and file a fresh appeal by reconstituting the appellate records.Issue 2: Destruction of records after five yearsThe Tribunal retains case records for only five years post disposal. As Appeal No. 567/1985 was dismissed in 1989 due to non-remittance of pre-deposit, the records were destroyed after the expiration of the stipulated period. This destruction of records posed a challenge in reconstituting the appeal and necessitated the petitioner to seek legal recourse through a writ petition.Issue 3: Maintainability of writ petition for reconstitution of appealThe respondent argued against the maintainability of the writ petition, stating that the appeal cannot be reconstituted after such a long period. However, the petitioner cited relevant legal precedents to support the reconstitution of the appeal, emphasizing the need for a fresh consideration based on the circumstances of the case.Issue 4: Application of Section 129E of the ActThe petitioner relied on a legal decision to support the reconstitution of the appeal, highlighting the importance of considering whether the goods in question are in the custody of the Revenue when invoking Section 129E of the Act. The petitioner aimed to demonstrate that the CESTAT should have taken into account relevant factors and assessed any undue hardship faced by the appellant before dismissing the appeal.Issue 5: Imposition of cost for negligence in pursuing appealThe court noted the negligence on the part of the petitioner in pursuing the appeal, leading to the imposition of a cost of Rs. 5,000. Despite the delay and laches in challenging the appellate order, the court directed the petitioner to file a fresh appeal within a specified timeline. The court also instructed the department to reconstitute the appellate records in compliance with the law and relevant legal principles.In conclusion, the High Court of Kerala disposed of the writ petition by allowing the petitioner to file a fresh appeal before the appellate authority within a specified timeframe. The court directed the respondent to hear and dispose of the fresh appeal on its merits within three months, considering the authoritative pronouncements of the apex court. The judgment aimed to address the issues of non-remittance of pre-deposit, destruction of records, maintainability of the writ petition, application of relevant legal provisions, and negligence in pursuing the appeal.