2015 (8) TMI 1228 - HC - Central Excise

Tribunal must correct order wrongly recording appellant's death when noticee actually died under Rule 41

SHREE GANESH FORGING CO. Versus UNION OF INDIA

The HC held that the Tribunal erred in dismissing the miscellaneous application seeking correction of its order dated 25th April, 2011, which recorded ... Validity of impugned order - Tribunal held that application was in substance an application to rectify the mistakes made in the order and not a simplicitor application for recalling the order of dismissal of an appeal by default - Held that:- Adjudicating authority was aware the noticee had expired as evident from the Order-in-Original. It is also evident the order dated 25th April, 2011 was passed in the presence of the Junior Departmental Representative pursuant to the appeal containing the statement of facts referred to by us earlier having been served on the Department. In such situation the mistake made by the Tribunal in passing the order on 25th April, 2011 recording abatement of appeal though at the instance of the appellant himself, was made in presence of the Department, which was aware about the identity of the appellant and the fact that it was the noticee who had died and not the appellant. This is how the gross mistake came about which by the miscellaneous application the writ petitioners sought to correct, but was turned down by the Tribunal - miscellaneous application of the writ petitioner was one for procedural review of the impugned order dated 25th April, 2011. We are of the opinion the Tribunal should have recalled the said order dated 25th April, 2011 in the light of Rule 41 to secure the ends of justice. In the facts and circumstances noted above, the Tribunal ought to have proceeded to have the appeal heard on merits - Matter remanded back - Decided in favour of assessee. Issues:Appeal against order dismissing Writ Petition - Rectification of mistakes in order - Application for recalling order of dismissal of appeal by default.Analysis:The appeal was directed against an order dismissing a Writ Petition, where the Single Judge opined that the application filed by the appellant-petitioner before the Tribunal was to rectify mistakes in the order, not a simple application for recalling the order of dismissal of an appeal by default.The case involved an Order-in-Original determining Central Excise Duty and imposing a penalty on a noticee. The noticee, the proprietor of the firm, had passed away, and his elder son took over the firm and appealed the order. However, the Tribunal passed an order recording abatement of the appeal due to the proprietor's death, dismissing the appeal.The appellant filed an application alleging the firm ceased to exist after the proprietor's demise, seeking to recall the order of abatement. The Tribunal dismissed this application, leading to the Writ Petition. The Court noted procedural errors in the Tribunal's orders and directed the Tribunal to recall the order of abatement and proceed to hear the appeal on merits.The Court cited judgments emphasizing the Tribunal's power to review orders for procedural fairness and to secure the ends of justice. It concluded that the Tribunal should have recalled the order of abatement and allowed the appeal to be heard on merits. The Court allowed the Writ Petition, restoring the appeal to its original status before the abatement order.In conclusion, the Court found procedural errors in the Tribunal's orders and directed a recall of the order of abatement to ensure the appeal is heard on merits, emphasizing the importance of procedural fairness and securing justice.