2025 (9) TMI 995 - AT - Service Tax

Appeal dismissed for repeated nonappearance and returned notices under Rule 20; dismissal convertible if sufficient cause shown

M/s. Srikar and Associates P Ltd. Versus Commissioner of GST & Central Excise, Chennai

CESTAT dismissed the appeal for default under Rule 20 (CESTAT Procedure Rules, 1982) because the appellant and its authorised representative repeatedly ... Dismissal of appeal for default where the appellant and its authorised representative repeatedly fail to appear and notices to the address on record are returned undelivered - Rule 20 of CESTAT (Procedure) Rules, 1982 - HELD THAT:- Rule 20 of the CESTAT Procedure Rules provides that if the appellant appears afterwards and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called on for hearing can set aside the dismissal and restore the appeal. There is no request on record for the appeal to be decided on merits ex-parte based on the grounds preferred in the appeal in the absence of the appellant’s presence or representation through its counsel. If it is required to decide the matter on merits, without having the benefit of hearing the appellant and upon such hearing if it were to hold against the appellant, then, having no locus to review of own judgement since it be rendered functus officio, it would thus be not only depriving the appellant of a chance to be heard, but also would be relegating the appellant to seek appropriate remedy in a higher judicial forum, if at all the appellant has justifiable reasons for repeated non representation and also lack of representation today. Considering the statutory position and the views expressed by the Hon’ble Apex Court in the judgement supra that adjournments can’t be given for the mere asking without any serious reason, backed with proof, for the non-appearance of the Appellant or his authorised representative on the dates of public hearing coupled with the fact that the appellant is not to be found at the address given and also considering that even after exhausting the prescribed methods of service, the appellant’s whereabouts are not known, we find that no purpose would be served in continuing to keep this appeal pending. The appeal is dismissed for default as per Rule 20 of CESTAT (Procedure) Rules, 1982. ISSUES PRESENTED AND CONSIDERED 1. Whether the Tribunal may dismiss an appeal for default where the appellant and its authorised representative repeatedly fail to appear and notices to the address on record are returned undelivered. 2. Whether the Tribunal should decide an appeal on merits in the absence of the appellant's presence or representation, particularly where the appellant's whereabouts are unknown after exhaustive service efforts. 3. The extent to which statutory limits on adjournments and procedural rules permit dismissal for default, and the scope for restoration if sufficient cause is later shown. ISSUE-WISE DETAILED ANALYSIS Issue 1: Power to dismiss an appeal for default where appellant repeatedly fails to appear and service attempts fail Legal framework: Section 35C(1A) (provision permitting adjournments but limiting them to no more than three times to a party during hearing) and Rule 20 of the CESTAT (Procedure) Rules, 1982 (empowering the Tribunal, in its discretion, to dismiss an appeal for appellant's default where the appellant does not appear on the day fixed for hearing, with a proviso allowing restoration if sufficient cause for non-appearance is shown). Precedent Treatment: The Tribunal relied on the authoritative position of the Apex Court condemning routine and mechanical adjournments and emphasising the need to curb delay in the justice delivery system; that line of jurisprudence was followed as guidance on limiting indulgence in repeated adjournments. Interpretation and reasoning: Where notices sent by RPAD to the appellant's address on record were returned with endorsement indicating the appellant was not traceable and there was no intimated change of address to the Tribunal, and where multiple earlier hearing dates passed without representation, the Tribunal found that sufficient procedural steps to secure attendance had been taken (including departmental service and on-site verification). Coupled with the statutory prohibition on more than three adjournments and Rule 20 discretion to dismiss for default, the lack of good cause or proof for repeated non-appearance justified dismissal. Ratio vs. Obiter: Ratio - The Tribunal's decision to dismiss for default is founded on the combined operation of Section 35C(1A) and Rule 20 applied to facts showing repeated non-appearance and failed service; the Apex Court's admonition against routine adjournments is treated as binding guidance informing the exercise of discretion. Obiter - observations on broader policy concerns about delay and the justice delivery system beyond their application to the instant facts. Conclusion: The Tribunal properly exercised its discretion to dismiss the appeal for default where the appellant repeatedly failed to appear and notices were returned undelivered after exhaustive service efforts. Issue 2: Whether the Tribunal should adjudicate the appeal on merits in the appellant's absence when appellant is untraceable Legal framework: Rule 20 permits either dismissal for default or determination on merits in the appellant's absence; the proviso allows restoration if sufficient cause for non-appearance is later shown. Precedent Treatment: The Tribunal applied the Apex Court's reasoning discouraging routine adjournments and emphasising the need for active judicial control to prevent delay; this informed the choice between ex parte adjudication and dismissal for default. Interpretation and reasoning: The Tribunal declined to decide on merits ex parte because doing so without the appellant's presence (and thus without the benefit of the appellant's case) could render any adverse judgment unreviewable by the Tribunal itself (functus officio), thereby potentially depriving the appellant of a meaningful opportunity to be heard and pushing the appellant to higher fora if it later established justification for non-appearance. Given the appellant was untraceable and no request or grounds were on record to decide ex parte, dismissal for default (with liberty to seek restoration) was held to be the more appropriate and legally prudent course. Ratio vs. Obiter: Ratio - Where the appellant is untraceable and no meritorious request for ex parte decision exists, the Tribunal may dismiss for default rather than decide on merits to preserve the appellant's ability to obtain restoration and to avoid rendering unreviewable adverse orders. Obiter - general observations on the desirability of ex parte decisions in other factual matrices. Conclusion: The Tribunal correctly refrained from adjudicating on merits in the appellant's absence and instead dismissed for default while reserving the statutory remedy of restoration upon demonstration of sufficient cause. Issue 3: Scope and application of restoration remedy after dismissal for default Legal framework: Rule 20's proviso expressly permits setting aside a dismissal for default and restoring the appeal where the appellant later appears and satisfies the Tribunal that there was sufficient cause for non-appearance. Precedent Treatment: The Tribunal's approach aligns with procedural fairness principles recognised in appellate practice - dismissal for default is permissible but subject to restoration where sufficient justification is shown. Interpretation and reasoning: While dismissing for default under Rule 20, the Tribunal granted liberty to the appellant to apply for restoration, making clear that dismissal is not a bar to later vindication where adequate reasons for earlier non-appearance are demonstrated. This balances institutional interests in preventing undue delay against the individual right to be heard where genuine cause exists. Ratio vs. Obiter: Ratio - Dismissal for default under Rule 20 must be accompanied by a clear statement of the availability of the restoration remedy; restoration remains available where sufficient cause for non-appearance is shown. Obiter - specifics of what constitutes 'sufficient cause' were not exhaustively defined and remain fact-sensitive. Conclusion: The Tribunal lawfully dismissed the appeal for default but properly preserved the appellant's statutory right to seek restoration on demonstrating sufficient cause for prior non-appearance. Cross-References and Practical Observations Where repeated non-appearance coincides with failed service to the address on record and no change of address is intimated, the Tribunal may treat the appeal as abandoned and dismiss for default under Rule 20 read with Section 35C(1A); however, dismissal does not foreclose restoration upon a satisfactory showing of sufficient cause.