1995 (7) TMI 364 - AT - Central Excise

Summary

Issues:
1. Recall of impugned order due to lack of effective opportunity for appellant.
2. Consideration of Advocate's affidavit and want of proper opportunity.
3. Application of inherent jurisdiction for rehearing the appeal.
4. Applicability of rulings from Calcutta High Court and Kerala High Court.
5. Dismissal of reference application.

Analysis:

1. The primary issue in this case revolves around the recall of the impugned order by the Tribunal due to the alleged lack of effective opportunity provided to the appellant. The appellant's Counsel contended that there was a bona fide mistake in noting the adjournment date, leading to the appeal being disposed of without proper representation. The Counsel relied on the principle that such a mistake should not deprive the party of a fair hearing, citing precedents to support their argument.

2. The Advocate for the appellant filed an Affidavit confirming his presence on the date the appeal was initially scheduled for hearing. However, due to a discrepancy in the adjournment date noted by the Counsel and the Tribunal's record, the appeal was disposed of in the absence of the Advocate. The learned DR acknowledged the situation and suggested that the Tribunal should reconsider the case after re-hearing to ensure justice is served.

3. The Tribunal, after considering the submissions, noted the Advocate's Affidavit and the genuine mistake made in noting the adjournment date. Citing the inherent jurisdiction of the Tribunal to ensure a fair hearing, the Tribunal decided that the appeal should be reheard to prevent any harm or irreparable injury to the party. The Tribunal referred to relevant judgments, emphasizing the importance of providing a reasonable opportunity to be heard before passing orders on the appeal.

4. The Tribunal drew guidance from the Divisional Bench of the Calcutta High Court and the Kerala High Court's rulings, which highlighted the Tribunal's power to set aside ex parte orders in the interest of justice. These judgments underscored the significance of affording a fair opportunity to the parties involved and the Tribunal's authority to rectify any procedural shortcomings to ensure a just outcome.

5. Consequently, the Tribunal ordered the recall of the impugned order and directed the appeal to be listed for re-hearing on merits. The new hearing date was set for a specific date to rectify the procedural lapse and ensure the appellant receives a fair chance to present their case. Additionally, the reference application was dismissed in light of the Tribunal's decision on the petition, concluding the legal proceedings in this matter.