2015 (7) TMI 705 - HC - Central Excise

High Court sets aside CESTAT order due to counsel absence

The High Court allowed the appeal, set aside the CESTAT order, and restored the matter for further consideration due to the absence of the appellant's ... Marketability of carbon dioxide - Commissioner held gas not marketable as that was not being capable of bought and sold - Held that:- Large number of adjournments had already been granted. It is not denied that counsel for the appellant did not put in appearance on 9-5-2013. The Tribunal, therefore, decided the appeal, on merits, after hearing counsel for the department, reversed the order passed by the Commissioner (Appeals), in favour of the appellant and restored the order passed by the adjudicating authority. While we do not condone the conduct of counsel for the appellant or comment upon the course adopted by the Tribunal, as a Tribunal may always pass an ex parte order the learned Tribunal should have adjourned the appeal by passing a pre-emptory order that in case the appellant or its counsel does not put in appearance on the next date, the appeal shall be heard ex parte. The failure of counsel for the appellant to put in appearance should not visit the appellant with dire consequences. - Decided in favour of assessee. Issues: Appeal against CESTAT order due to counsel's absence, Tribunal's decision based on merits, absence of appellant's counsel, request for appeal restoration, consequences of counsel's negligence.In this case, the appellant-assessee challenged the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 9-5-2013, which set aside the Commissioner (Appeals) order and reinstated the adjudicating authority's decision. The appellant's counsel failed to appear before the Tribunal, leading to the appeal being allowed in favor of the respondent-department. The appellant contended that despite the counsel's negligence, the appellant should not suffer the consequences, especially since the Commissioner (Appeals) had ruled in their favor. The Revenue argued that it was the appellant's responsibility to ensure the counsel's presence and that the Tribunal, having examined the case on merits, should dismiss the appeal. The High Court noted the history of adjournments and the absence of the appellant's counsel on the hearing date. The Court acknowledged that while the Tribunal can pass ex parte orders, it should have issued a pre-emptory order for the appellant's counsel to appear, rather than deciding the appeal solely based on the respondent's submissions. The Court allowed the appeal, set aside the Tribunal's order, and restored the matter to CESTAT, subject to the appellant paying costs to the respondents. The parties were directed to appear before CESTAT for a decision within two months.