HUSSEIN HAJI HARUN ALIAS HUSSEIN KABIJU Vs. UNION OF INDIA
LAWS(GJH)-1988-3-28
HIGH COURT OF GUJARAT
Decided on March 04,1988

Hussein Haji Harun Alias Hussein Kabiju Appellant
VERSUS
UNION OF INDIA Respondents


Referred Judgements :-

COLLECTOR LAND ACQUISITION ANANTNAG AND ANR. V. MST. KATIJI AND ORS. [REFERRED TO]





JUDGEMENT

R.J.SHAH - (1.)Rule in Spl. C. A. No. 2515 of 1987. Mr. J. D. Ajmera waives service of the rule. The petitioner in both the petitions is the same. The respondents in both the petitions are mostly common except that there is one more respondent in Special Civil Application No. 2515 of 1987 who is the Mamlatdar (Recovery) Mandvi (Kutch). As common questions arise in the above petitions the same are disposed of by this common judgment.
(2.)To appreciate the controversies between the parties it is necessary to state a few relevant facts. A notice dated 18-8-1984 was issued to the present petitioner alongwith 21 others to show cause as to why goods of foreign origin totally valued at Rs. 17 32 0 should not be confiscated under the provisions of the Customs Act 1962 The concerned persons were also asked to show cause as to why the vessel MSV PIRANI MNV 192 should not be confiscated under the provisions of the Customs Act 1962 The persons concerned were another asked to show cause as to 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 presen 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 0 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 deposit. A notice was issued to the petitioner as to why the appeal should not be rejected in terms of Sec. 129E of the said Act. On 20-12-1985 the said Tribunal passed an order recording that on that day neither the applicant; nor his Advocate was present that there was no intimation of the deposit having been made; that no cause was also shown for non-deposit and so in the circumstances the appeal was rejected in terms of Sec. 129E of the Customs Act. It appears that petitioner thereafter preferred Misc. Application No. 36 of 1986 for setting aside the said order of dismissal of the appeal and for restoring the said Appeal No. 109 of 1985 The said application was heard and dismissed as per the majority view by the Tribunal on 26-8-1987. Mr. K. S. Dilipsinhji Member (T) of the said Tribunal did not see any merit in the restoration application and so had expressed an opinion to reject the same. Mr. K Gopal Hedge Member (J) did not agree with the said view and was of the opinion that the application should be allowed that the order of rejection of the appeal should be set aside and that the appeal should be restored on the applicant depositing a sum of Rs. 1 lac within a week from the date of receipt of the order. Because of the said difference of opinion between the two learned Members the records were submitted to the President as provided in sub-sec. (5) of Sec. 129C of the Customs Act the points of difference being as under:
"(a) Whether restoration of the appeal dismissed for non-deposit of the penalty amount would amount to review of the earlier order and as such the application has no merit and therefore requires rejection as held by Member (T);
OR
(b) The restoration of the appeal dismissed for non-deposit of the penalty amount would not amount to review of the earlier order and on the facts and in the circumstances of the case the application should be allowed as held by Member (J);
Mr. K. L. Rekhi Member (T) agreed with the aforesaid view of Mr. K. S. Dilipsinhji and reached the conclusion that restoring an appeal would amount to review of the earlier order of dismissal and since the Tribunal had no such power to review its earlier final order he was of the view that the application for restoration of the appeal had no merit and so he ordered dismissal of the same. Thus pursuant to the majority view the application for restoration failed as per the final order dated 26-8-1987.
(3.)The aforesaid Special Civil 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 0 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 lacs against the total amount of penalty of Rs. 5 lacs on him in pursuance of the several orders passed by the High Court from time to time in the aforesaid Special Civil Application. The petitioner has also stated by the said amendment that he had filed the aforesaid appeal which was a composite appeal for setting aside penalty and also for setting aside the order of confiscation of the said vessel and therefore the Appellate Tribunal was not justified in rejecting the composite appeal. He has also submitted vide the amendment that the aforesaid restoration application deserves to be reconsidered in the light of the new development also that is to say in the light of the payment of entire redemption fine and also payment of pre-deposit of Rs. 1 lac as per the original order passed in the application for stay and also in view of the fact that remainder amount of the penalty was also secured by a guarantee bond. In Special Civil Application No. 2515 of 1987 the petitioner has therefore prayed that the aforesaid order dismissing the appeal should be set aside and the appeal should be restored on file and be decided on merits and that the order on the aforesaid restorations application should be set aside so that the aforesaid appeal of the petitioner may be disposed of at an early date.
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