2012 (11) TMI 30 - AT - Central Excise

Tribunal restores appeal, deems dismissal rule invalid, emphasizes fair hearing & notice

The Tribunal allowed the application for restoration of the appeal dismissed for non-prosecution by directing the appeal to be heard on merits. Relying on ... Restoration of appeal dismissed for non-prosecution - Tribunal's duty to decide appeal on merits in absence of appellant - Validity of power to dismiss for default under tribunal procedure rules (held ultra vires) - Notice of hearing and serviceRestoration of appeal dismissed for non-prosecution - Notice of hearing and service - Tribunal's duty to decide appeal on merits in absence of appellant - Application for restoration of an appeal dismissed for non-prosecution was allowed. - HELD THAT: - The Tribunal found no record of any hearing notice or proof that a notice of hearing was sent to the appellant. The dismissal order dated 12-8-2004 was one for non-prosecution. In view of authoritative decisions holding that the Tribunal must, in the absence of the appellant, decide the appeal on its merits and that a rule empowering dismissal for default is ultra vires, the appellant ought to be afforded an opportunity to be heard on merits. On these facts, restoration was warranted. [Paras 6]Application for restoration allowed; the appellant to be heard on merits.Tribunal's duty to decide appeal on merits in absence of appellant - Validity of power to dismiss for default under tribunal procedure rules (held ultra vires) - The appeal was directed to be re-listed for hearing on merits (restored and remanded for consideration). - HELD THAT: - Relying on precedents that (i) the Tribunal should decide appeals on merits where the appellant is absent and (ii) provisions enabling dismissal for default have been struck down as ultra vires, the Tribunal concluded that the appropriate course is to restore the appeal and list it for hearing with notice to the appellant and present counsel. The Registry was directed to list the appeal in due course with notice. [Paras 6]Appeal restored and directed to be listed for hearing on merits with notice to the appellant and counsel.Final Conclusion: The application for restoration of the appeal dismissed for non-prosecution is allowed; the appeal is restored and directed to be listed for hearing on merits with notice to the appellant and counsel. Issues: Restoration of appeal dismissed for non-prosecution.Analysis:The case involved an application for restoration of an appeal that was dismissed for non-prosecution by the Tribunal. The applicant, Mahendra Trading Co., had initially filed an appeal on 31-5-2000 and obtained a waiver of pre-deposit on 28-4-2001. The applicant believed their appeal was pending, but they were later informed in 2006 by the Superintendent Preventive, Lucknow, about the dismissal of their appeal due to non-prosecution. The applicant claimed they had not received any such order of dismissal and were unaware of the status of their appeal until 2010. The applicant, having not received any notice or intimation regarding the dismissal, applied for restoration of the appeal on the grounds that they were not informed of the hearing or the dismissal order dated 12-8-2004. They also mentioned the demise of their authorized representative, Shri B.N. Rangwani, as a factor contributing to their lack of awareness regarding the appeal status.During the argument, the applicant's counsel cited legal precedents to support the restoration of the appeal. Reference was made to the case of Viral Laminates v. UOI, where the Gujarat High Court had invalidated Rule 20 of CESTAT (Procedure) Rules, 1982, which allowed dismissal of appeals for default of appearance. Additionally, the case of Chemipol v. UOI was mentioned, where the Bombay High Court held that the Tribunal must decide appeals on merits if submissions are filed in writing, and cannot dismiss appeals for non-prosecution. The counsel prayed for the appeal to be restored and heard on merits.After considering the submissions and reviewing the records, the Tribunal noted the absence of any notice of hearing in the records and the lack of evidence regarding whether the notice was sent to the applicant. The Tribunal also acknowledged the previous order dismissing the appeal for non-prosecution. In line with the legal principles cited, the Tribunal decided that in the absence of the appellant, the appeal should be heard on merits. Citing the rulings of the High Courts, the Tribunal found that Rule 20 of CESTAT (Procedure) Rules was ultra vires and directed the restoration of the appeal. The Tribunal ordered the Registry to list the appeal for a hearing, ensuring notice to both the applicant and their present counsel.In conclusion, the Tribunal allowed the application for restoration of the appeal dismissed for non-prosecution, emphasizing the need for the appeal to be heard on merits and following the legal precedents cited during the proceedings.