TaxTMI 
TaxTMI 
2007 (10) TMI 55
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....d the appellants to deposit an amount of Rs. 40 lakhs. He submits that the appellants had already deposited an amount of Rs. 50 lakhs and further deposit of Rs. 40 lakhs was difficult as the appellant was in the financial crises. He submits that there is change in circumstances as Mumbai Debt Recovery Tribunal has passed an order and issued recovery certificate against the company. He submits that the premises of the appellant have been taken over by the authorities on the directions of the Mumbai Debt Recovery Tribunal. it is his submission that as on today there is a change in circumstances, which warrants reconsideration of the conditions of pre-deposit, passed at the first instance on an application filed by the appellants for waiver of pre-deposit of the amount involved. He relies upon the following case laws for the above two propositions (a) Hussein Haji Harun v. UOI- 1995 (77) E.L.T. 803 (Guj.) (1) Maine Khemka v. UOI- 2004 (170) E.L.T. 3 (Bom.) (c) SMI Electrowire Pvt Ltd. v. UOI -2006 (198) E.L.T. 333 (Del.) 4. The ld. SDR on the other hand submits that the appeals of the appellant has been dismissed by the Tribunal for non-compliance on 2-11-2002. It is his submissio....
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....garded as a final order under Sec. 129B(4) of the Customs Act, 1962. The learned Judicial Member has rightly observed in his order that the Tribunal has been entertaining appeals against the orders passed by the Collector (Appeals) r the appeal for non-deposit of the penalty amount; that such orders of the Collector (Appeals) are treated as orders made under Section 128A, that in such appeals the Tribunal has jurisdiction to entertain appeals which were rejected by the 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-deposi....
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....d are not final orders. Such a construction would lead to injustice and would not further the ends of justice. What would happen in a given case where an appeal was dismissed for non-production of proof of deposit of penalty and it turned out in an application for restoration of such an appeal that the amount had already been deposited within the time granted but for some reason the same could not be reported or brought to the notice of the Tribunal before the 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." 6. Respectfully following the ratio as laid down by the Hon'ble High Court of Gujarat, we restore Appeal Nos. C/415 & 414/ ....
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....ness in the State of Maharashtra and falls under the jurisdiction of the Hon'ble High Court of Bombay and hence, will be covered by the judgments and decisions of the jurisdictional High Court i.e., Hon'ble High Court of Judicature at Bombay. The Hon'ble High Court of Judicature at Bombay in the case of Baron International Ltd., (supra) has undoubtedly held that the Tribunal ought to have refused to entertain such application for prima facie case warranting modification of the earlier order. At the same time their Lordship in the very same judgment in paragraph S also held as under ;- "Our experience shows that in almost all the applications moved to seek modification of the Tribunal's order contain only grounds of review. They are freely entertained by the CEGAT and the same are sometime accepted or rejected on merits with detailed order. Such exercise, apart front labour, must be consuming major part of its working hours. This wastage of labour and working hours can easily be saved by the CEGAT, if application moved in this behalf is prima facie, examined by CECAT to find out whether any change in circumstance after the previous order, is shown with sufficient material in that b....
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.... that the Tribunal cannot mod its order, In Baron International Ltd., the Division Bench of this Court though held that the Tribunal cannot exercise review jurisdiction but the party before the Tribunal can always seek modification of the order. It would be, thus, seen that the Tribunal had jurisdiction to modify its order dated 11-2-2004, within the permissible limits and parameters laid down in law. Moreover, the Tribunal's order dated 29-10-2002 in the case of M/s. R.K. Impex & AK. More justify the dispensation of pre-deposit in the present case." (emphasis supplied) 9. It is on careful reading of the above said two judgments of the Hon'ble High Court of Judicature at Bombay, it is noted that the judgment of their Lordship in the case of Maina Khemka directly covers issue before us. Hon'ble High Court has held that the Tribunal has got jurisdiction to modify its order within the permissible limit and parameters of law after considering the judgment of Baron International Ltd. (supra). We find that the decision of the Hon'ble High Court in the case of Maina Khemka was delivered on 16-6-2004 while the decision of the Hon'ble High Court in the case of Baron International Ltd., was....