2016 (9) TMI 271 - AT - Customs

Appellate tribunal recalls order due to advocate's late arrival, emphasizes justice, restores appeals for disposal

The appellate tribunal recalled the final order rejecting three appeals by the assessee on merits, as the advocate's delayed arrival due to a late train ... Recall of ex-parte order - Restoration of appeals - Sufficient cause for non-appearance - Power to recall ex-parte dismissal - Validity of order passed in absence of partyRecall of ex-parte order - Sufficient cause for non-appearance - Power to recall ex-parte dismissal - The Tribunal recalled its final ex parte order and restored the appeals on the ground of sufficient cause for non appearance of the appellants' counsel. - HELD THAT: - The Tribunal examined the record and noted that the preamble of the final order recorded presence of 'none' for the appellants' representative and the appellants had filed an affidavit explaining that their counsel was delayed due to a late train arrival. The Revenue's submission that the body of the order referred to learned counsel's contentions was considered but the Tribunal relied on the contemporaneous note-sheet and the appellants' averment that nobody appeared. Applying the established principle that the Tribunal has the power to recall an ex parte dismissal when there is sufficient cause for absence, and that ends of justice require setting aside ex parte orders where non appearance is not the party's fault, the Tribunal found the delayed arrival of the advocate attributable to circumstances beyond his control to be sufficient cause. In consequence, the Tribunal concluded that the ex parte final order should be recalled and the appeals restored for final disposal.Final order dated 18.11.2015 recalled; appeals restored to original numbers and listed for final disposal on 16.8.2016; ROA application allowed.Final Conclusion: The Tribunal allowed the application to recall its ex parte final order on grounds of sufficient cause for non appearance, restored the appeals and directed them to be finally heard on the specified date. Issues involved:1. Recalling of the final order rejecting three appeals filed by the assessee on merits.2. Absence of the appellant's representative during the passing of the final order.3. Contentions regarding the ex-parte nature of the order and the need for restoration.4. Consideration of sufficient cause for the advocate's late appearance before the Tribunal.Issue 1: Recalling of the final order rejecting three appeals:The appellate tribunal received miscellaneous applications for recalling the final order dated 18.11.15, where three appeals by the assessee were rejected on merits. It was noted that nobody appeared at the time of passing the final order, and the appellant's contentions were not considered. The Tribunal observed discrepancies in the order, indicating that the valuation submitted by the appellant was not adequately addressed. The learned advocate contended that the order was passed ex-parte due to his delayed arrival caused by a late train.Issue 2: Absence of the appellant's representative during the final order:The order recorded that nobody appeared for the assessee, despite references to learned counsel's contentions. The advocate for the appellant submitted an affidavit explaining the delayed arrival due to a late train from Chandigarh to Delhi. The order noted the absence of the appellant's representative during the final decision, leading to the request for restoration of the appeals.Issue 3: Ex-parte nature of the order and the need for restoration:The Revenue representative argued that even though the preamble indicated no appearance by the assessee's representative, the body of the order referenced learned counsel's contentions, implying his presence. However, the appellant's contention was that the order was ex-parte and should be recalled based on the Supreme Court's ruling in J K Synthetics Ltd. vs. CC [1996 (86) ELT472 (SC)], which allows for the recall of ex-parte orders when there is a sufficient cause for the absence of a party.Issue 4: Consideration of sufficient cause for the advocate's late appearance:The Tribunal found that the advocate's delayed arrival was due to circumstances beyond his control, specifically a delayed train. Citing the Supreme Court's ruling, the Tribunal acknowledged the advocate's valid reason for not appearing on time and decided to recall the final order, restoring the appeals to their original status for final disposal on a specified date. The application for restoration was allowed, emphasizing the importance of ensuring justice when a party is unable to appear due to reasons beyond their control.