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Judgment
P.V. Subba Rao, Member (T)
This application for seeking restoration has been filed by the appellant seeking recall of Final Order No. C/A/52959/2016-CU dated 09.08.2016 passed by this Tribunal whereby the appellant’s appeal was dismissed and the impugned order was affirmed. We have heard Shri Bipin Garg, learned counsel for the applicant and Shri Rakesh Kumar, learned authorised representative for the Revenue and perused the records.
Records show that on 11.05.2016, the matter was heard and Shri L.P. Asthana, Ms. Reena Khair, Ms. Rita Jha and Ms. Shreya Dahia argued on behalf of the appellant while Shri Ranjan Khanna and Shri Rajiv Gupta appeared on behalf of the department. After considering the submissions of both sides, a detailed order was passed on 09.08.2016 recording the reasons and holding that there was no infirmity in the impugned order passed by the Commissioner and rejecting the appeal.
The present application has been filed on 25.01.2023 more than six years after the final order was passed. Learned counsel for the appellant fairly admits that the final order was passed on merits after hearing both sides and recording the reasons. He however, submits there was a parallel proceeding regarding the alleged violation by the exporter - M/s Dadi Impex Pvt. Ltd. Based on the alleged violations of M/s Dadi Impex Pvt. Ltd. and treating the action taken against M/s Dadi Impex Pvt. Ltd as the offence report, proceedings were initiated against the appellant to cancel the CHA licence of the appellant. M/s Dadi Impex Pvt. Ltd. had also approached the Tribunal and the Ahmedabad Bench of this Tribunal, by order dated 12.09.2017, remanded the matter to the original authority along with the bunch of other matters. It is, therefore, his submission that the main cause of action which resulted in issuance of the show cause notice and the revocation of the licence of the appellant under CHA License Regulations itself is now in jeopardy. No cause of action survives in these proceedings and, therefore, the final order passed by this Tribunal may be recalled.
Learned authorised representative for the Revenue submits that the CESTAT Procedure Rules provide for restoration of appeal under Rule 20. This rule provides for restoration of appeal only in cases where the matter has been decided ex-parte. In this case, not only as the matter been decided after hearing both sides but it has been decided after recording reasons. He further submits that this application for restoration of appeal has been filed after more than six years which is an inordinate delay and, therefore, the final order cannot be recalled at this stage. He relies on the judgment of Tribunal in the case of M/s Anjani Technoplast Ltd. Vs. Commissioner of Customs (Exports), New Delhi 2022 (8) TMI 886-CESTAT-New Delhi. Para 22 of which is reproduced below:
“22 In the present case, as noted above, the application was filed by the appellant for recall of the order dated 07.07.2015 only on 31.05.2022. The appellant had throughout contested before the Delhi High Court and the Supreme Court that it should not be required to deposit the amount because the un-amended provisions of Section 35 of the Customs Act would be applicable. Even after the dismissal of the Civil Appeal by the Supreme Court on 23.01.2017, the appellant took more than five years to file the application for recall of the order. No satisfactory explanation has been given by the applicant for this enormous delay. In fact, only a casual statement has been made that earlier the financial capacity of the appellant was bad and it took sometime to recover, whereafter the amount was deposited in September 2020. The application was filed after two years of the deposit. The application, therefore, deserves to be rejected for this reason also.
After hearing both sides, we find that there was no infirmity in the final order passed by this Tribunal based on the circumstances available on that date. Having passed the Final Order, this Tribunal has became functus officio. If the appellant was aggrieved by the final order the proper course of action could have been to file an appeal. Simply because in a related matter which was the cause of initiation of action in these proceedings has now been remanded by the Tribunal to the Commissioner, the final order does not become invalid and we find no ground to recall our final order and restore this appeal.
It also needs to be pointed out that the action against the appellant was initiated based on a letter of Commissioner of Customs, Kandla dated 3.12.2010 addressed to the Commissioner, Jodhpur and NOT based on any Order-in-Original passed by any Commissioner. Consequent upon the investigation by DRI a show cause notice came to be issued to the exporter M/s Dadi Impex. During investigation, it came to light that the applicant/appellant before us acted as CHA and in discharging his functions, violated certain provisions of CHA Licensing Regulations. These allegations of violation of CHALR by the appellant/applicant have been confirmed by the Commissioner, Jodhpur and upheld by the Final Order dated 9.8.2016. Any decision regarding action under the Customs Act against the exporter and/or the appellant are separate proceedings.
We also note that remand order of the Ahmedabad Bench in the appeal of the exporter on which reliance is now placed was also passed in 2017 – five years before this application is filed. The remand was on a technical issue and there is no finding that the case against the exporter has not been proved.
The application for restoration application is accordingly, dismissed.