Right to be heard in statutory appeals supports recall of ex parte disposal where hearing notice was not served.

A statutory appellate order passed without serving notice of hearing and without affording the appellant an opportunity to be heard violates the hearing requirement under section 35-C(1) of the Central Excise Act, 1944. Where the record does not show service of notice and the appellant's absence is not attributable to its own default, that absence cannot be treated as valid non-appearance. In such circumstances, an ex parte disposal may be recalled and the appeal restored for fresh hearing if the ends of justice so require. The text states that the restoration request should not be rejected merely because the appeal was described as disposed of on merits.

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Issues: Whether the Tribunal was bound to restore an appeal dismissed on merits when the appellant had not been served with notice of hearing and was not heard before the order was passed.

Analysis: The appeal before the Tribunal was a statutory appeal and Section 35-C(1) of the Central Excise Act, 1944 requires that the parties be given an opportunity of being heard before orders are passed. The record did not show service of notice of the hearing date on the appellant, and the order itself did not disclose any material to establish service. In these circumstances, the absence of the appellant could not be treated as a valid default. The denial of hearing offended the appellant's valuable procedural right and, following the principle that an ex parte disposal can be recalled where sufficient cause is shown, the restoration request could not be rejected merely because the appeal had been stated to be disposed of on merits.

Conclusion: The restoration application ought to have been allowed and the appeal restored for fresh hearing after giving the appellant an opportunity of being heard.

Final Conclusion: The impugned order rejecting restoration was set aside and the matter was sent back for adjudication on merits after hearing the appellant.

Ratio Decidendi: A statutory appellate order passed without serving notice of hearing and without hearing the appellant can be recalled and the appeal restored when the absence was not attributable to the appellant and the ends of justice so require.

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