2023 (1) TMI 461 - AT - Customs

Appeal filed with defects, early hearing application not pursued, restoration denied - key lessons on procedural compliance

M/s Ashok Malhotra Versus Commissioner of Customs, (Airport & General), New Delhi

The appeal was filed with defects, leading to notices for rectification. Despite rectification, the early hearing application was not pursued, resulting ... Seeking recall of order - early hearing of application was sought by applicant - duty of the applicant to follow the dates on which the application was listed on the website of the Tribunal, if the appellant was interested in pursuing the application - applicant alleged that a notice had not been sent by the Tribunal to the appellant regarding the next date fixed - HELD THAT:- When an early hearing application had been filed, learned counsel should have made all efforts to find out the next date fixed from the website of the Tribunal, as it is not the case of the learned counsel that the applicant was not aware that the matter was listed on August 2, 2022 - when the cause list of August 11, 2022, which is also uploaded on the website of the Tribunal also contained the present matter, the learned counsel should have noted the case and attended the proceedings, but learned counsel did not appear even on the date. As the order mentions, it was adjourned to October 11, 2022 even though learned counsel did not appear. The cause list of October 11, 2022 also contains this matter and there is no reason as to why the learned counsel should not have marked the case in the cause list which was available on the website of the Tribunal. Even on the said date, learned counsel did not appear - It is the appellant who had filed the early hearing application and, therefore, it was the duty of the applicant to follow the dates on which the application was listed on the website of the Tribunal, if the appellant was interested in pursuing the application instead of making a complaint that a notice had not been sent by the Tribunal to the appellant regarding the next date fixed. The applicant has failed out to make out any case for recall of the order dated October 11, 2022. This application is, accordingly, rejected. Issues:1. Appeal filed with defects and subsequent rejection of early hearing application.2. Allegation of incorrect service of notice and rejection of early hearing application.3. Application for restoration of early hearing application and allegations of passing an ex-parte order without natural justice principles.Issue 1:The appeal was filed with defects, leading to notices being sent to the appellant for rectification. Despite the removal of defects, the early hearing application was not pressed on the scheduled dates. The Tribunal listed the application for early hearing, but the appellant and counsel failed to appear, indicating a lack of interest. Subsequently, the application was rejected, and the appeal was to be listed in due course.Issue 2:An application was filed for restoration of the early hearing application, contesting the alleged incorrect service of notice and the passing of an ex-parte order. The applicant argued that no notice was received for the hearing date, leading to the order being passed without adhering to natural justice principles. However, the Tribunal highlighted its practice of uploading orders and adjournment dates on its website, eliminating the need for physical notices. The applicant's failure to track the listing dates online was emphasized, and the application was rejected.Issue 3:The applicant's claim of not receiving notice for the hearing date was countered by the Tribunal's reliance on the online publication of proceedings. The responsibility to monitor listing dates fell on the applicant, who had initiated the early hearing application. The rejection of the restoration application was based on the applicant's failure to demonstrate a valid reason for recall, although the option to file a fresh early hearing application remained open for the appellant.