TaxTMI 
TaxTMI 
2010 (9) TMI 730
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.... non-appearance of the respondents on 25th May, 2010 was due to the circumstances mentioned in the said application was not brought to the notice of the Bench and, therefore, there is a justifiable cause for recall of the said order. 4. Perusal of the application does not disclose any other ground for recall of the final order passed on 25th May, 2010. In the circumstances, therefore, when the advocate for the respondents was asked, as to whether there was any ground on merits to assail the order dated 25th May, 2010, he submitted that, though the respondents have no case on merits, the fact that there was no suppression, as such, on the part of the respondents and on that ground there was no justification for invocation of extended period of limitation was not considered by the Tribunal nor the Tribunal had occasion to deal with the same as the same was not brought to the notice of the Tribunal and though on restoration of the appeal even the said order could be confirmed on merits, the matter will have to be remanded to the Commissioner (Appeals) to deal with the aspect on the point of limitation which the respondents would be able to canvass on restoration of the appeal. 5....
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....led Misc. Application being Application No. 494 of 2009 for recall of the said order. In those circumstances, without considering the Misc. Application No. 494 of 2009 the Tribunal could not have disposed of the appeal on 25th May, 2010. 6. The Departmental Representative, on the other hand, submitted that, the appeal was sought to be adjourned on number of occasions by the respondents and in those circumstances when the matter came up for hearing on 25th May, 2010, in the absence of the respondents and their advocate without any sufficient cause being disclosed for the same, the Tribunal disposed of the same on merits and therefore there is no case for recall of the said order. 7. Perusal of the application, undoubtedly, discloses that, the sole ground on which the same has been filed is that, the respondents on 24th May, 2010 had submitted a letter to the registry seeking adjournment of the hearing on 25th May, 2010 due to the non-availability of the advocate on that day. The application does not disclose any copy of the alleged letter dated 24th May, 2010- The application was filed with the registry on 26th July, 2010. However, in the course of the arguments, the learned a....
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....ly expected from the respondents to enclose the copy of such letter along with the application disclosing necessary details about the presentation of such application in the registry on 24th May, 2010. It is not known as to why the same was not disclosed in the application and why the respondents had to wait till the date of today's hearing to contend that the proof thereof could be verified from the inward register by verifying whether the same was entered at Serial No. 186 on 24th May, 2010 or not. Be that as it may, the ground disclosed in the letter is that, the advocate for the respondents was unwell and, therefore, could not attend the hearing on 25th May, 2010. It is to be noted that the letter was not under the signature of the advocate. It was sent by the party. In those circumstances, in the absence of any proof about the sickness of the advocate merely on statement of the party, even if the application was presented before the Tribunal on the very day, it could have been rejected for want of proof relating to the contents of the said application. There is yet another reason, as rightly pointed out by the Departmental Representative, that though in some matters the Tribun....
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....ly different set of facts. It is not mere absence of application before the Tribunal on 25th May, 2010 that led to the passing of the order. Even assuming that the letter was placed before the Bench, it was certainly in the discretion of the Bench either to accept or reject the said letter and/or to adjourn the matter. As already observed above the letter was sent by the party and not by the advocate. There was no proof along with the letter about the sickness of the advocate. The contention of the learned advocate that he is making a statement today that he was sick on that particular day would not make any difference in the absence of proof of his sickness on 25th May, 2010 when the matter was heard and decided. We will have to see the matter in the context of the day on which the matter was taken up for hearing i.e. 25th May, 2010 and not what is claimed by or on behalf of the party today. Secondly, the points as to whether the advocate for the party was sick on a particular day and that, therefore, the party could not secure the presence of his advocate before the Tribunal are the questions of fact and need to be proved by the party by placing on record cogent materials in supp....
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....y to the records. The records clearly disclose a Letter No. IVT/09/10 dated 22nd October, 2009 sent by the authorized signatory of the respondents addressed to the Tribunal on the letterhead of the respondents. The said letter reads thus : "IVT/09/10                   DATE : 22/10/09 TO, ASSISTANT REGISTRAR CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WTC 1ST FLOOR, FKCCI COMPLEX, KEMPEGOWDA ROAD BANGALORE-560009 Dear Sir, SUB : Your letter dated 8-10-09 REF : Misc. Order No. 527/2009 With reference to the above please note, we are in receipt of your letter on 22-10-09 morning. It is not possible for us to attend the Personal Hearing on 23-10-09 with such a short notice. Hence we request you to adjourn the P.H. and offer us suitable date to do the needful. We are also sorry to inform you that we did not receive any intimation letter for the Personal Hearing held on 7-10-09. Thanking you, Yours Truly, For Indo Vacuum Technologies Pvt. Ltd. (E....
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.... could have influenced its decision. 14. In any case, the order dated 25th May, 2010 does refer to the issue of bar of limitation while holding thus : "25. As regards the bar of limitation, as already observed above, the adjudicating authority has on analysis of the material on record has arrived at the finding that the respondents could not bring anything on record which could reveal that the department had prior knowledge of use of brand name of another person by the respondents for the product manufactured by them. The said finding of fact has not been interfered with by the Commissioner (Appeals). Perusal of the records also do not disclose any justification for interference in the said finding. We are referring to this aspect because the respondents are not represented before us. The respondents have also not filed any cross objections. In the circumstances though we are not required to go into the said issue, since the respondents are not represented before us, we have also considered the said aspect of the matter. 26. Considering the view that we are taking in the matter, it is also not necessary to refer to other judgments relied upon by the learned DR ....