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[Judgment per : M.S. Sonak, J. (Oral)]. - Heard Ms. Asha Desai, the
Learned Senior Standing Counsel for the Customs Department, who are the ap-
pellants in both these appeals.
2. Both these appeals were in fact tagged to Customs Appeal No. 1 of
2013 in which, the issue was virtually identical to the issue involved in both these
appeals. Customs Appeal No. 1 of 2013 was disposed of vide Judgment and Or-
der dated 26-11-2019 [2020 (371) E.L.T. 281 (Bom.)]. However, these two appeals
could not be disposed of on the said date, because there was some issue of ser-
vice upon the respondents. Leave was therefore granted to effect service upon
the respondents, inter alia, by way of substituted service i.e. paper publication.
3. Ms. Desai, the Learned Senior Standing Counsel, now tenders affi-
davits of service in both these appeals. Along with these affidavits, copies of pa-
per publications affected in the Times of India, Bangalore Edition dated 21-12-
2019 have also been placed on record.
4. From the perusal of the affidavit of service and its annexures, we are
satisfied that respondents have been validly served in these appeals.
5. The challenge in this appeal is in fact to the common Judgment and
Order dated 19-4-2007 made by the Customs, Excise and Service Tax Appellate
(Tribunal), rejecting the appeal instituted by the appellant herein against the or-
der made by the Commissioner of Customs (Appeals), Mumbai.
6. Both these appeals were admitted on the following substantial ques-
tions of law :
“(A) Whether CESTAT could reopen an appeal for hearing which was al-
ready finally disposed of by its own previous order?
(B) Whether CESTAT has power to review its own order and pass fresh fi-
nal order in the absence of any petition for review?”
7. In these cases as well as noted by us in our Judgment and Order dat-
ed 26-11-2019 disposing of Custom Appeal No. 1 of 2013, the records reveal that
in fact by order dated 10-7-1998, the appeals instituted by the appellants herein
had in fact been allowed, inter alia, by enhancing the final penalty.
8. Despite the aforesaid, the Tribunal took up the appeals for considera-
tion along with two connected appeals. Although the Special Defence Repre-
sentative (SDR) did appear before the Tribunal on the date when such appeal
was taken up for hearing, the Tribunal, it appears, was not apprised of its earlier
order dated 10-7-1998 by which the appeals had already been disposed of almost
nine years earlier. The Tribunal, on this occasion, however dismissed the appeal
vide impugned order dated 19-4-2007. Hence, the present appeals by the appel-
lants herein on the aforesaid substantial questions of law.
9. From the records, it is obvious that very taking up the Appeal No.
C/84l/1997 by the Tribunal on 19th April, 2007 was an exercise in excess of ju-
risdiction. Since the appeal had already been disposed of by the order dated 10th
July, 1998, there was really no occasion for taking up such appeal for reconsider-
ation. It is obvious that such taking up of the appeal was a result of miscommu-
nication. It is obvious that the factum of disposal of the appeal by order dated
10th July, 1998 was not brought to the notice of the Tribunal, either by the SDR or
the staff of the Tribunal. For these reasons alone, the impugned orders dated
19-4-2007 in both these appeals are liable to be set aside and are hereby set aside.
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