TaxTMI 
TaxTMI 
2005 (5) TMI 72
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.... Steel/Rec/04-05 dated 27-10-2004 respondent No. 3 called upon the petitioner to discharge the liability as CESTAT had passed its order dated 5-3-2004 bearing No. C-III/1007/WZB/2004 allowing the departmental appeal. 4.On receipt of the aforesaid letter and copy of the order of CESTAT the petitioner moved an application being Misc. Application seeking restoration of the appeal on 2-11-2004. During the pendency of the said Misc. Application the petitioner filed Special Civil Application No. 14970 of 2003 before this Court seeking direction to the respondent authorities against coercive recovery. Alternative prayer was that CESTAT may be directed to hear and decide the petitioner's Misc. Application dated 2-11-2004. 5.On 30-11-2004 this Court passed an order in the aforesaid petition by holding that : "The interest of justice would be served by directing the learned CESTAT to hear and decide the application dated 2-11-2004 (Annexure-D) submitted by the petitioners to the learned CESTAT for recalling its order as early as possible. Accordingly, learned CESTAT is directed to decide the application dated 2-11-2004 for recalling the order passed in appeal as early as possible an....
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....ves service of Rule. 10.It is submitted by Mr. Shah that CESTAT has committed an error in law in not granting adjournment as prayed for and rejecting the application for restoration. He therefore urged that the said order be quashed and set aside and the Restoration Application be restored to the file of CESTAT directing CESTAT to hear the parties on the Restoration Application. 11.Mr. Malkan on behalf of the respondent authorities submitted that there was no error committed by CESTAT in light of Rule 21 of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 (the Rules) with special reference to proviso under Rule 20 of the Rules. It was submitted that as rightly held by CESTAT the appeal before the CESTAT was a departmental appeal and the petitioner, as respondent had no right to seek restoration of the appeal which was decided ex parte in absence of the respondent. He therefore submitted that no interference was called for and the petition be rejected. 12.Impugned order dated 24-2-2005 made by CESTAT cannot be permitted to stand for the reasons that follow hereinafter. 13.CESTAT has lost sight of the fact that it was not called upon to hear and ....
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....ng, the Tribunal may hear and decide the appeal ex parte". 15.On a plain reading at first blush, the interpretation adopted by CESTAT may appear to be correct. Rule 20 of the Rules states that on the day fixed for the hearing of the appeal in case of non-appearance on behalf of the appellant CESTAT is entitled in its discretion either to dismiss the appeal for default or hear and decide it on merits. Under the proviso it is laid down that in case where the appeal is dismissed for default and the appellant appears afterwards and makes out sufficient cause for non-appearance CESTAT shall make an order setting aside the ex parte dismissal and restore the appeal. 16.Rule 21 of the Rules provides for hearing of appeal ex parte in a case where the appellant appears and the respondent does not appear when the appeal is called out for hearing. Under the said rule, CESTAT is entitled to exercise its discretion, i.e. it may hear and decide the appeal ex parte. Thus, it may appear that restoration of an appeal is only permissible at the behest of the appellant and not at the instance of the respondent when the appeal is decided ex parte. However, such narrow and pedantic view cannot be ....
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....ported by affidavit of partner of the petitioner sworn on 2-11-2004. In these circumstances, CESTAT could not have proceeded on the basis of Rule 21 of the Rules because even if the interpretation sought to be placed by CESTAT may be accepted for the sake of argument, it would yet require that the facts and the record establish that notice of hearing envisaged under Rule 18 was duly served on the respondent. Only then and then it could be stated that the respondent had committed a default and was required to bear the consequences by way of appeal being decided ex parte. Therefore, CESTAT was duty bound to await till the verification of its own record was complete. 19Considering the issue from a. slightly different angle it is necessary to take into consideration the provisions of Section 35C(2) of the Act. The said section permits CESTAT to amend any order made by it under Section 35C(1) of the Act with a view to rectify any mistake apparent from the record within the period of limitation if the mistake is brought to its notice by either party. Therefore, an order which was made deciding the departmental appeal ex parte can be said to suffer from a legal infirmity viz. non-compl....