2025 (12) TMI 905 - HC - Customs

Writ under Article 226 fails where appeal dismissed for unpaid statutory pre-deposit despite financial hardship claim and seized assets

The HC dismissed the appeal seeking restoration of an appeal before CESTAT that had been rejected for non-compliance with the statutory pre-deposit ... Seeking restoration of the appeal before the appellate tribunal - non-compliance with the requirement of pre-deposit, due to precarious financial conditions - HELD THAT:- The chronology of events would show that though the first SLP filed by the Appellant was dismissed as withdrawn, the second SLP filed against the order of the Allahabad High Court, was dismissed after being heard. In view of the fact that the Allahabad High Court had already rejected this very prayer that has been sought in the present appeal and the matter has been dismissed by the Supreme Court, this Court is of the view that this appeal cannot be entertained at this stage. The Court, initially, at first blush, was inclined to entertain the matter on the ground that the value of the seized silver, as per the Appellant is more than Rs. 10 crores and the same is lying with the Customs Department and only due to failure to pay the pre-deposit of Rs.5,00,000/-, the appeal could not be heard by the CESTAT. However, in view of the fact that the second SLP was entertained and dismissed by the Supreme Court, the Court is not inclined to exercise its jurisdiction under Article 226 of Constitution of India. Appeal disposed off. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the prayer for restoration of the appeal before the appellate tribunal, after dismissal for non-compliance with pre-deposit, can be entertained afresh when the same relief has already been rejected by another High Court and the Supreme Court. 1.2 Whether, in view of the prior dismissal of a special leave petition by the Supreme Court arising from the same cause, the High Court ought to exercise its jurisdiction under Section 130 of the Customs Act, 1962 read with Article 226 of the Constitution to grant further relief to the appellant. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Maintainability of repeated request for restoration of appeal after dismissal for non-deposit of pre-deposit, in light of prior High Court and Supreme Court orders Legal framework (as discussed) 2.1 The Court noted the statutory requirement of pre-deposit under Section 129E of the Customs Act, 1962 as considered earlier by the appellate tribunal and the Allahabad High Court. 2.2 The Court referred to the Allahabad High Court judgment which examined the tribunal's power to restore an appeal dismissed for non-deposit, with reference to the Division Bench decision of the Gujarat High Court in 'Hussain Haji Harun alias Hussein Kabiju vs. Union of India and others', which held that the tribunal has jurisdiction to restore such appeals. Interpretation and reasoning 2.3 The Court traced the chronology: seizure in 1991; adjudication and order-in-original in 1997; conditional stay by the tribunal in 1998 requiring pre-deposit of Rs. 5,00,000/-; extension of time granted by the Delhi High Court up to April 1999; failure of the appellant to make the pre-deposit; dismissal of the appeal by the tribunal on 16 August 1999; dismissal of the restoration application by the tribunal on 26 February 2007; dismissal of the challenge to that order by the Allahabad High Court in May 2007; and dismissal of the subsequent special leave petition by the Supreme Court in October 2007. 2.4 The Allahabad High Court had already considered and rejected the appellant's request for restoration after an eight-year delay from the expiry of time for pre-deposit. It accepted, on facts, that such belated restoration could not be entertained, distinguishing the Gujarat High Court precedent where restoration had been sought within a few months of dismissal. 2.5 The present appeal sought, in substance, the same relief: restoration of the appeal before the tribunal and acceptance of the pre-deposit belatedly, this time nearly 13 years after dismissal of the second SLP, despite the appellant having already pursued two rounds of litigation before High Courts and two before the Supreme Court. 2.6 The Court considered that the appellant had persistently defaulted in complying with the pre-deposit direction despite multiple opportunities and that the question of restoration, on the same facts and the same non-compliance, had attained finality through the Allahabad High Court judgment and the subsequent dismissal of the SLP by the Supreme Court. Conclusions 2.7 The Court held that, in view of the earlier rejection of the very same prayer for restoration by the Allahabad High Court and its affirmation by the Supreme Court, the appellant could not seek a fresh round of relief before another High Court for essentially the same cause. 2.8 The Court concluded that the appeal seeking further extension/restoration before the tribunal was not entertainable at this stage. Issue 2 - Effect of prior dismissal of special leave petition on the exercise of jurisdiction under Section 130 of the Customs Act and Article 226 of the Constitution Interpretation and reasoning 2.9 The Court noted that the first special leave petition had been dismissed as withdrawn, while the second special leave petition against the Allahabad High Court's order was dismissed after being heard. 2.10 The Court initially considered, at a preliminary stage, the substantial value of the seized silver (claimed by the appellant to be more than Rs. 10 crores) and the fact that it remained undisposed of and in the custody of the Customs Department, and was at 'first blush' inclined to consider the matter on that ground, noting that the appellant had never had an opportunity to argue the appeal on merits before the tribunal. 2.11 However, upon receiving instructions that the silver was still lying in the customs godown and upon revisiting the procedural history, the Court placed decisive weight on the fact that the second SLP had been entertained and dismissed by the Supreme Court, thereby affirming the Allahabad High Court's refusal to direct restoration. 2.12 The Court reasoned that, in light of the Supreme Court's dismissal of the SLP on the same underlying issue, it would not be appropriate to exercise its jurisdiction under Article 226 of the Constitution or Section 130 of the Customs Act to effectively reopen the same controversy. Conclusions 2.13 The Court held that, because the Supreme Court had already dismissed the second SLP arising from the Allahabad High Court's refusal to permit restoration, the High Court would not exercise its writ or appellate jurisdiction to grant any further relief in respect of restoration of the tribunal appeal. 2.14 The Court disposed of the appeal and pending applications, while observing that if the appellant wished to approach the Supreme Court, they were free to do so in accordance with law.