IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 16.12.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.Nos.23998 and 23999 of 2001 M/s.Plant Organics Ltd., No.62, Nagarjuna Hill, Panjagutta, Hyderbad – 500 082. ... Petitioner in both writ petitions -Versus- 1.The Customs, Excise and Gold [Control] Appellate Tribunal, South Zonal Bench, Haddows Road, Chennai. 2.The Commissioner of Customs, Customs House, Chennai 600 001. ... Respondents in both Writ Petitions Prayer in W.P.Nos.23998 and 23999 of 2001:- Petitions filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus calling for the records of the 1st respondent in Miscellaneous Order No.289 & 290 dated 24.09.2001 C/ROA/43 & 44 in Appeal Nos.C/305/306/2001 and C/160/2000/MD and quash the same and direct the 1st respondent to restore the appeal Nos.C/305/306/2001 & C/160/2000/MD to its record and rehear the stay applications de-novo. For petitioner in both : Mr.C.Saravan Writ Petitions For respondent (s) in both : Mr.K.Ramakrishna Reddy, Writ Petitions SCGC for RR1 and 2 COMMON ORDER The petitioner in W.P.No.23999 is a company known as Plant Organics Limited, which is governed by the Companies Act. The petitioner in W.P.No.23998 of 2001 is the Managing Director of https://hcservices.ecourts.gov.in/hcservices/ the said company. The petitioner company is a manufacturer and exporter of bulk drugs namely Ciprofloaxacin HCL, Ciprofloaxacin Acid and Enrofloxacin. The petitioner company was operating under Notification No.149/95-Cus dated 19.09.1995. The petitioner company was granted Advance Licences to import certain inputs duty free to manufacture the above said drugs for export purpose under licence Nos.147899 [Ciprofloaxacin HCL] dated 26.12.1995; 26350 [Ciprofloaxacin Acid] dated 26.11.1996; 9000302 [Ciprofloaxacin] dated 28.11.1997; and 9000304 [Enrofloxacin] dated 28.11.1997. During the years 1995-96 and 1996-97, according to the petitioners, the demand for Ciprofloaxacin HCL and Ciproflaxacin Acid was very low and therefore, the petitioner company was unable to proceed to manufacture them. However, according to the petitioner, the demand for Enrofloxacin continued in the international market. Therefore, the petitioner manufactured Enrofloxacin out of inputs imported under the first three licences to manufacture Ciprofloaxacin HCL and Ciprofloaxacin Acid. In the said process, out of the total export obligation of 6.50 MT under all the first three Advance Licences the petitioner company was able to export only 6.035 MT of finished goods. There was only a shortage of 6.465 MT of finished goods. According to the petitioners, as per the export- import policy, the clubbing of obligation under the licence is also permitted. He would further contend that the petitioner company had not utilised almost 85% of the benefit available under the advance licence mentioned as serial No.4 [licence No.9000304] for exporting Enrofloxacin. It is further contended that the petitioner made a request to club the duty free licences mentioned above where the export products are different as long as inputs allowed to be imported and other conditions imposed under the licences are the same. Such applications were made by the petitioner on 10.07.1998 to the Joint Director, Foreign Trade, Hyderabad. But, there was no further order passed on the same. While so, during September, 1999 the officials of the respondent visited the petitioner's factory and inspected. During such inspection, they found that the petitioner failed to comply with the export obligation as per the above licenses. Therefore, a show cause notice dated 04.01.1999 was issued to the petitioner. The petitioner submitted an explanation. Thereafter, the 2nd respondent by his proceedings in Order-In-Original No.28/2000 (CAU) dated 28.03.2000 confirmed the demand in the show cause notice for customs duty under these licenses. The petitioner company and its Managing Director filed two separate appeals in Customs Appeal Nos.305 and 306 of 2000 respectively before the 1st respondent challenging the order of the 2nd respondent. When these appeals came up for consideration before the 1st respondent appellate tribunal, the petitioners filed two separate applications under Section 129-E of the Customs Act, 1962 [hereinafter referred to as “the Act”] seeking to dispense with pre-deposit of the duty amount demanded under the orders impugned therein. The 1st respondent by order dated 09.08.2000 https://hcservices.ecourts.gov.in/hcservices/ directed the petitioner to make pre-deposit of Rs.60 lakhs as a condition to entertain the Appeals Nos.305 and 306 of 2000. But, the petitioner did not comply with the said condition. Therefore, the appeals were rejected by the 1st respondent. 2. Subsequently, the petitioners in these writ petitions filed two separate applications in C/ROA/43 and 44/2001 in Appeal No.C/305/306/2001. The prayer in those applications are to recall the final order as well as the said interim orders and to modify the said order granting full waiver of pre-deposit of demanded duty amount. By a common order, both the applications were dismissed by the 1st respondent on 24.09.2001. Challenging the same, the petitioner company has come up with W.P.No.23999 of 2001 and its Managing Director has come up with W.P.No.23998 of 2001. 3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and also perused the records carefully. 4. Indisputably, as against the order in Original No.28/ 2000 (CAU) dated 28.03.2000 passed by the 2nd respondent, appeal Nos.305 & 306 of 2000 were filed. But, for entertaining such appeals as provided in Section 129-E of the Act, the entire amount demanded as per the impugned order together with interest should be deposited before the proper officer. However, as per the first proviso to Section 129-E of the Act, the Tribunal may dispense with such deposit subject to such condition as the tribunal may deem proper in the event, the tribunal is of the opinion that the deposit of the duty and interest demanded would cause undue hardship to the petitioners. In this case, the petitioners filed applications under first proviso to Section 129-E of the Act before the 1st respondent to dispense with the above pre-deposit on the ground of likelihood of undue hardship. The same was considered by the tribunal and finally, the tribunal issued an order dispensing with the deposit of 25% of the demand and directing the petitioners to deposit 75% of the demand. The said order was not challenged before any other forum. Such order had become final. But, the fact remains that within the time stipulated, the petitioners did not comply with the said order. Therefore, the appeals were rightly rejected by the 1st respondent. If once the appeals are rejected on the ground of failure to make pre-deposit as required under Section 129-E of the Act, it goes without saying that there is no appeal at all on the file of the 1st respondent for consideration. If once appeals are disposed of on the above ground , in my considered opinion, the tribunal has got no power to recall such order for any reason whatsoever subsequently. 5. But the learned counsel appearing for the petitioners https://hcservices.ecourts.gov.in/hcservices/ would submit that under Section 129-B (2) of the Customs Act, the 1st respondent has got power to recall the said order. The learned counsel for the petitioner submit under Rule 41 of the Customs, Excise and Gold [Control] Appellant Tribunal [Procedure] Rules, 1982 also, the tribunal has got such power. 6. But, the learned counsel appearing for the respondents would submit that Section 129-B (2) of the Act can be invoked only if there is any patent error in the order passed under Section 129-B(1) of the Act by the appellate tribunal. Here, in this case, according to the learned counsel , the order has been passed only under Section 129-E of the Act and, therefore, this provision is not applicable. The learned counsel would further add that Rule 41 speaks of inherent power which cannot be made use of to nullify the order which was validly passed. 7. I have considered the above submissions on this ground. Before going to have further discussions on this , it would be worthwhile to extract Sections 129-E and 129-B of the Act. 8. Section 129-E of the Act reads as under:- 129E. DEPOSIT, PENDING APPEAL, OF DUTY AND INTEREST DEMANDED OR PENALTY LEVIED. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied : Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue. 9. Section 129-B of the Act reads as under:- https://hcservices.ecourts.gov.in/hcservices/ " 129B. ORDERS OF APPELLATE TRIBUNAL. - (1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to the appeal : Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. (3) The Appellate Tribunal shall send a copy of every order passed under this section to the Commissioner of Customs and the other party to the appeal. (4) Save as otherwise provided in section 130 or section 130E, orders passed by the Appellate Tribunal on appeal shall be final." 10. A close reading of these two provisions would go to show that the appeal can be entertained by the appellate tribunal if only pre-deposit is made. When such payment of pre-deposit is a pre-condition for entertaining appeal, if no pre-deposit is made then, there shall be no appeal in stricto sensu on the file of the appellate tribunal for passing any order. However, under the first proviso to Section 129-E of the Act, the appellate tribunal may dispense with the pre-deposit. In this case, the appellate tribunal had dispensed with only 25% of the demanded amount and the balance of 75% was ordered to be deposited within the stipulated period. Admittedly , the petitioners did not pay the same. Thus, there was no compliance of Section 129-E of the Act https://hcservices.ecourts.gov.in/hcservices/ and, therefore, the appeal had to be taken out of the file of the appellate tribunal. Thus, there was no appeal at all in stricto sensu on the file of the appellate tribunal for passing any order. 11. If once such appeals have been rejected for non compliance of Section 129-E , the question is whether by invoking Section 129-B (2) of the Act , the appellate tribunal has got power to recall the order. A perusal of sub-section 2 of Section 129-B would go to show that it enables the appellate tribunal to rectify any mistake apparent from the record or amend any order passed by it under sub-section (1). In this case, there was no order made under Section 129-B (1) of the Act. Further, the learned counsel for the petitioners is not able to show as to what is the patent mistake in the order rejecting the appeals. The orders of rejection of appeals, in these cases, have been made strictly in accordance with law because under Section 129-E of the Act, if no pre-deposit is made, appeal is liable to be rejected. Therefore, it cannot be stated that there has occurred any mistake , that too, apparent from the record warranting any rectification by invoking the power under Section 129-B (2) of the Act. Therefore, in my considered opinion, the applications filed by the petitioners before the appellate tribunal which resulted in the impugned orders are wholly without jurisdiction. 12. The learned counsel would, however, contend that under Rule 41 of the Appellate Tribunal [Procedure] Rules, the appellate tribunal has got power to entertain such applications. Rule 41 reads as follows:- "41. Orders and directions in certain cases – The Tribunal may make such orders to give such directions as may be necessary or expedient to give effect or in relation to its orders to prevent abuse of its process or to secure the ends of justice." 13. In my considered opinion, this rule also does not empower the appellate tribunal to recall a final order passed as per the statutory compulsion for non compliance of payment of pre-deposit. In my considered view, interim orders of such kind normally granted in appeals, after the appeals are entertained by the courts cannot be equated to an order dispensing with the payment of pre-deposit. In these cases, the interim order passed by the tribunal is only in respect of 25% of the demand made and regarding the balance 75% , it is the statutory obligation under Section 129-E of the Act for the petitioner to deposit. Since the petitioner did not discharge such statutory obligation under Section 129-A of the Act in respect of 75% of the payment, the appellate tribunal was right in rejecting the appeals. https://hcservices.ecourts.gov.in/hcservices/ 14. The learned counsel would further add that when once such finality has been reached, by invoking Rule 41, the same cannot be recalled. The purpose of Rule 41 is not to nullify the order where finality has been reached in the proceedings. Therefore, Rule 41 does not come to the rescue of the petitioners. 15. In my considered opinion, if at all the petitioners have any grievance regarding the orders passed dispensing with only 25% of the demanded amount under Section 129-E of the Act, the petitioners would have done well by challenging the said orders in the manner known to law provided they were of the view that they had a valid ground under Section 129-E of the Act to get pre-deposit of the entire duty amount demanded dispensed with. Without doing so, it is not at all open for the petitioners to file applications subsequently under Section 129-B (2) of the Act to recall the ultimate orders passed by the appellate tribunal rejecting the appeals. In my considered opinion, as I have already stated , if once the order regarding pre-deposit of the demanded duty amount under Section 129-E of the Act is not complied with, the appellate tribunal has got no other power or discretion except to reject the appeals. That is what has been rightly done by the appellate tribunal in the instant cases. Therefore, after such orders have been passed, which have put a finality to the proceedings, it is not all open for the appellate tribunal to entertain the applications under Section 129-B (2) of the Act to recall its own orders. Though the appellate tribunal has rejected these applications on different grounds and even assuming that the grounds on which the applications have been rejected by the appellate tribunal are not sustainable, in my considered opinion, the ultimate orders rejecting the applications cannot be interfered with inasmuch as the applications ought not to have been entertained by the appellate tribunal for want of jurisdiction. In such circumstances, I do not find any reason to interfere with the impugned common orders passed by the appellate tribunal. 16. The learned counsel for the petitioners would at this juncture make a request to this Court to clarify the position that the petitioners have got right to challenge the interim orders passed under the first proviso to Section 129-E of the Act. In this regard, I do not want to express any opinion inasmuch as it is always open for the petitioners work out their remedy as against the orders made under Section 120-E of the Act in the manner known to law, if they have got any legal ground to do so. https://hcservices.ecourts.gov.in/hcservices/ 17. In the result, both the writ petitions are dismissed with the aforesaid observations. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kmk To 1.The Commissioner of Customs Customs House, Chennai 600 001. 2.The Customs, Excise and Gold (Control) Appellate Tribunal, South Zonal Bench, Haddows Road, Chennai. 1 cc to Mr.C. Saravanan, Advocate, Sr. 90178 Writ Petition Nos.23998 and 23999 of 2001 GV (CO) kk 28/3 https://hcservices.ecourts.gov.in/hcservices/