TaxTMI 
TaxTMI 
2025 (10) TMI 1261
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....ioner's Excise Appeal No.10992 of 2013-SM: or in the alternative, your Lordships may be pleased to issue a Writ of Certiorari or a Writ of Mandamus or any other appropriate writ, direction or order, quashing and setting aside Final Order No.11831/2023 dated 30.08.2023 and directing the Appellate Tribunal to pass a fresh Order after hearing the Petitioner on merits; 3. Brief facts of the case are as under: 3.1 The petitioner Company is engaged in the manufacture of excisable goods classifiable under Chapter 84 of the First Schedule to the Central Excise Tariff Act, 1985. The petitioner effected the removal of finished goods having an aggregate assessable value of Rs. 15,92,280/- to developers of Special Economic Zones (for short 'SEZ') during the period from 2007-08 and 2008-09 without payment of excise duty or reversal of proportionate credit in terms of Rule 6(3)(ii) of the Cenvat Credit Rules, 2004. 3.2 A show-cause notice dated 28.2.2011 was issued to the petitioner alleging that the clearances of goods made to SEZ developers do not fall within the purview of Rule 6(6)(i) of the Cenvat Credit Rules, 2004 and, therefore, the petitioner was not eligible for the exempt....
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....e is no mistake apparent on record as CESTAT had become functus officio after passing the order dated 30.8.2023. 3.8 Being aggrieved by the impugned order dated 31.1.2025, the petitioner petition. has preferred this 4. Learned advocate Mr. Amal Dave for the petitioner submitted that the CESTAT has passed the ex-parte Order-in-Appeal preferred by the petitioner ignoring the fact that the notice was not served due to change of address of the petitioner. It was also submitted that the order on merits passed by the CESTAT also suffers from various mistakes apparent on record. It was also pointed out that the CESTAT has referred and relied upon the decision of Division Bench of the Tribunal in the case of Sujana Metals wherein it was held that the benefit under Rule 6(6A) of the CENVAT Credit Rules, 2004 would be applicable retrospectively. However, mistake apparent on record is committed in observing that the decision of M/s. Sujana Metal Products Ltd. v. Commissioner of C. Ex., Hyderabad, reported in 2011 (273) ELT 112 [Tri-Bangalore] was contradicted in case of Surya Roshni Ltd. v. Commissioner of Central Excise, Rohtak, reported in 2012 (285) E.L.T 518 (Tri-Delhi), but the CES....
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....hat the petitioner Company is now merged with the other Company namely Voltas Ltd. and, therefore, inadvertently the tracking of the pending appeal was lost. 5. On the other hand, learned advocate Mr. Utkarsh Sharma submitted that the petitioner failed to notify the change of address, and therefore the CESTAT had no option but to pass an ex-parte order. It was submitted that it is true that the petitioner did not remain present because of its own negligence and, therefore, the CESTAT was justified in rejecting the application to recall the order. 6. Having heard the learned advocates for the respective parties and considering the facts of the case, it appears that the CESTAT has passed an ex-parte order in absence of the change of address by the petitioner. However, the CESTAT cannot be said to have become functus officio when it is pointed out to the Tribunal about the mistake committed by applying the Notification No. 50 of 2008 whereby the Rule 6(6) was amended with effect from 31.12.2008 retrospectively and held to be retrospectively in the decisions relied upon by the CESTAT. Thus, the CESTAT has committed mistake apparent on record as pointed out by the petitioner in it....
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.... is established to the satisfaction of CEGAT that there was sufficient cause, CEGAT must set aside the ex-parte order, restore the appeal to its file and hear it afresh on merits. 8. On the facts of the present case, we think it proper to allow the appellants' application to CEGAT for setting aside the ex-parte order against it ourselves 9. The appeal is allowed. The order under appeal is set aside. The application of the appellant for recalling the order dated 31st August, 1987, passed by CEGAT ex-parte against it is allowed. The appeal (No. 590/84C) before CEGAT is restored to its file and shall be heard and disposed of on merits 8. Thus, the Supreme Court has clearly held that the Appellate Tribunal is clothed with express power under Rule 41 of the CEGAT (Procedure) Rules (now called the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982] to make such order as is necessary to secure the ends of justice and, therefore, has the power to set aside an order passed ex-parte against the respondent before it if it is found that the respondent had, for sufficient cause, been unable to appear. 9. Insofar as the other grounds on....
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.... is a non-reasoned and non-speaking one. The observation made by the Appellate Tribunal in the impugned order to the effect that the Bench comprising of the President and the Member (Technical) had arrived at a reasoned decision dated 23-2-2016, is therefore, not borne out from the record. 11. In the light of the law laid down by the Supreme Court in the case of JK. Synthetics Ltd. v. Collector of Central Excise, (supra), wherein the Supreme Court has held that the fact that Rule 21 does not expressly state that an order on an appeal heard and disposed of ex-parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean that CEGAT has no power to do so. Rule 41 gives CEGAT wide powers to make such orders or give such directions as might be necessary or expedient to give effect or in relation to its order or to prevent abuse of its process or, most importantly, to secure the ends of justice. The Court has held that CEGAT is clothed with express power under Rule 41 to make such order as is necessary to secure the ends of justice and, therefore, has the power to set aside an order passed ex-parte against the respondent before it if it i....
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....o whether the Tribunal constituted under the provisions of Industrial Disputes Act, has power to set aside an ex-parte order in absence of express provisions in the Act or the Rules framed thereunder or not. The Supreme Court has held that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. The Supreme Court found that there was no express provision in the Act or rules framed thereunder giving the Tribunal jurisdiction to set aside its ex-parte award and even then it has been held that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the status to the contrary. After examining the meaning of word "review", it has been held therein that the expression "review" is used in the two distinct senses, namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the ....
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.... said judgment, the Supreme Court has further observed as under: "Review literally and even judicially means re-examination or re-consideration Basic philosophy inherent in it is the universal acceptance of human falibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the Highest court indicating the circumstances in which it could rectify its order the courts called out such power to avoid abuse of process or miscarriage of justice. In Raja Prithvi Chand Lal Choudhury v. Sukhraj Rai and Others, AIR 1941 Federal Court 1, the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rao v. Bijai Govind Singh 1 Moo PC 117 that an order made by the Court was final ....
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....dent. The Supreme Court has construed the provisions of Rules 20, 21 and 41 of the Customs Excise and Gold (Control) Appellate Tribunal (Procedure) Rules 1982 and held that, the Tribunal is clothed with express power under the Customs, Excise & Gold Appellate Tribunal (Procedure) Rules to make such order as is necessary to secure the ends of justice and the Tribunal has, therefore, the power to set aside an order passed ex-parte against a party before it if it is found that the party had, for sufficient cause, been unable to appear It is further observed that the fact that Rule 21 does not expressly state that an order passed in an appeal heard and disposed of ex-parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean the Tribunal has no power to do so. What is stressed by the Apex Court is that quite apart from the inherent power that every Tribunal or court to do justice has, if it is established to the satisfaction of the Tribunal that there was sufficient cause, the Tribunal must set aside the ex-parte order, restore the appeal to its the and hear it fresh on merits. In view of the principle laid down by the Supreme Court in the ab....
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....not confused its power to review its earlier order with appellate power. Though in the case of A.T. Sharma (supra) Supreme Court has held that powers of review available High Court under Article 226 of the Constitution, are analogous to provisions of Order 41 Rule 1 CPC, in earlier decision rendered in the case of Shivdeo Singh v State of Punjab AIR 1963 Supreme Court 1909, the Constitution Bench of Apex Court has defined powers of review available to the High Court under Article 226 of the Constitution and ruled that there is clothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in very court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. Even in subsequent decision, i.e. in case of Grindlays Bank Ltd. (supra), the Apex Court has explained that the expression view is used in the two distinct senses namely, (1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it and (2) a review on merits when the error sought to be corrected is one of law and is ap....