2010 (5) TMI 439 - AT - Customs

Appeal restored despite counsel error, emphasizing appellant's right to seek relief.

The Tribunal allowed the restoration of an appeal that was dismissed as withdrawn due to a mistake by the appellant's counsel. The Member (T) referred to ... Appeal to Tribunal – restoration of appeal - appeal dismissed as withdrawn by the Tribunal - Tribunal accepted the proposition that if it had power to allow an application for withdrawal of appeal, it also had the power to allow, on sufficient grounds, an application for withdrawal of such an application – Held that: - the CESTAT Procedure Rules enabled the Tribunal to pass such orders as may be necessary to meet ends of justice - appeal deserves to be restored - appellant cannot be denied opportunity to seek relief admissible to it before the Tribunal for an apparent mistake of its Counsel - ROA application is allowed Issues: Restoration of appeal dismissed as withdrawn by the Tribunal.Analysis:The appellant filed a miscellaneous application seeking restoration of an appeal that was dismissed as withdrawn by the Tribunal. The appellant's counsel was unable to attend the hearing, and a junior advocate mistakenly withdrew the appeal. The appellant argued that the withdrawal was erroneous and cited several case laws supporting the restoration of such appeals. The department did not object to the restoration. The Member (T) carefully reviewed the case records and the submissions. Referring to the case law Padiyur Sarvodaya Sangh v. Commissioner of Central Excise, Coimbatore [2008 (227) E.L.T. 441 (Tri.-Chennai)], it was noted that the Tribunal had the power to allow restoration of appeals dismissed as withdrawn. Rule 41 of the CESTAT Procedure Rules empowered the Tribunal to pass orders necessary for the ends of justice. The Member (T) found that the appeal deserved to be restored as it was erroneously withdrawn by the appellant's counsel. The decision emphasized that an appellant should not be deprived of seeking relief due to a mistake by its counsel. Consequently, the restoration of the appeal was allowed, and the matter was scheduled for a regular hearing on 27-8-2010.