2024 (12) TMI 1099 - AT - Customs

Company loses appeal restoration after missing seven hearings and delaying new counsel appointment for one year

CESTAT New Delhi dismissed the restoration of appeal filed by a private limited company after the appellant failed to appear for seven scheduled hearings. ... Restoration of Appeals filed by M/s Himachal Fashion Pvt Ltd against CESTAT Final Order - failure on the part of appelant to appear for hearings - HELD THAT:- The appellant waited for one full year after the withdrawal of the Vakalatnama of the earlier advocate, to approach and appoint a new advocate. Further, when the Final Order was issued on 19.03.2024 which as per the prevalent practice is also uploaded, there are no justifiable reason for the appellants to appoint an advocate on 23.08.2024 to pursue the appeal, merely for filing the present Restoration of Appeal (ROA). This clearly evidences that the appellant and the co-noticee have failed to take interest to agitate their appeals before this Tribunal. When an advocate withdraws his Vakalatnama, it was the responsibility of the appellants to appoint another advocate to represent them during the proceedings of appeal. Restoration of Appeal (ROA) is not a matter of right of the appellants. It is not to be permitted in routine manner, and is permitted only in exceptional cases where it is inevitable and there are valid reasons for restoring the appeal. In the instant application, the appellant/co-noticee have failed to submit any valid reasons for failing to appear as and when the case was posted for hearing. Adjournments can be sought, but for valid reasons only. However, no valid or justifiable reason has been submitted by the Ld Counsel for failing to appear on the seven opportunities offered to the appellant by this Tribunal. In the instant case, the Tribunal has decided the case on merits taking into the grounds of appeal from the Appeal Memorandum filed by the appellant and the co-noticee. Further, as per proviso to Section 129B (1A) of the Customs Act, 1962, there was no necessity for CESTAT to offer more than three adjournments. However, this Tribunal had offered seven(7) opportunities but the appellant failed to appear. It is also noted that as per Rule 21 of CESTAT (Procedure) Rules, 1982, CESTAT has powers to pass final order ex-parte if the appellant does not respond to repeated offer for hearings. Appeal dismissed. Issues:Restoration of Appeals filed by M/s Himachal Fashion Pvt Ltd against CESTAT Final Order, failure to appear for hearings, validity of restoration of appeal, service of final hearing notice, dismissal of appeals on merits.Analysis:1. Restoration of Appeals: M/s Himachal Fashion Pvt Ltd filed Restoration of Appeals against CESTAT Final Order. The appellant and co-noticee failed to appear for hearings despite multiple opportunities provided by the Tribunal. The appellant's counsel sought restoration citing reasons like non-service of hearing notice and health issues of co-noticee's advocate. The Departmental Authorized Representative opposed restoration, highlighting the appellant's non-appearance during hearings and failure to present evidence to refute the allegations.2. Failure to Appear for Hearings: The Tribunal scheduled multiple hearings for the appeals, but neither the appellant nor the co-noticee appeared. The appellant's advocate withdrew, and subsequent notices were served, but no new counsel was appointed. The Tribunal noted the lack of interest from the appellants in pursuing their case, as evidenced by delayed appointment of a new advocate after the Final Order was issued.3. Validity of Restoration of Appeal: The Tribunal emphasized that Restoration of Appeal is not a right but allowed in exceptional cases with valid reasons. The appellants failed to provide justifiable reasons for their non-appearance during the hearings. The Tribunal considered the tardiness in following up on the appeal and the lack of convincing reasons for restoration.4. Service of Final Hearing Notice: The appellant claimed non-service of the final hearing notice, but the Tribunal pointed out that orders are uploaded on the website and deemed served. The Tribunal found the appellant's conduct lacking in diligence and dismissed the claim of non-service as a valid reason for restoration.5. Dismissal of Appeals on Merits: The Tribunal clarified that the Final Order was passed after considering all grounds of appeal and submissions from both parties. The Tribunal decided the case on merits, not technical grounds, as per the Supreme Court's ruling. Despite offering more opportunities than required, the appellant failed to appear, leading to the dismissal of the Restoration of Appeals.6. Conclusion: The Tribunal dismissed the Restoration of Appeals filed by the appellant and co-noticee, emphasizing the lack of valid reasons for non-appearance during hearings and the decision being based on merits. The Tribunal's decision was pronounced on 08.11.2024, highlighting the importance of diligence and timely action in pursuing legal remedies before the Tribunal.