2007 (3) TMI 558 - AT - Central Excise

Summary

Issues:
Recall of Final Orders due to non-appearance and adjournment application.

Analysis:
The appellants filed miscellaneous applications seeking to recall Final Orders dated 5-12-2005 due to non-appearance on the scheduled hearing date. The authorized representative, a Chartered Accountant, was unable to attend the hearing on 28-11-2005 due to his father's ceremony in Dakshin Kannada District. The representative had a legitimate reason for non-appearance and had filed an adjournment application in advance. The appellants argued that there was no mala fide intention to abstain from the hearing, and the non-appearance was beyond their control. They relied on case laws like J.K. Synthetics Ltd. v. CCE and Grindlays Bank Ltd. v. Central Government Industrial Tribunal to support their claim that ex-parte orders should be set aside when a party is unable to appear for a valid reason. The Tribunal found sufficient justification to recall the orders in the interest of justice, allowing the application and scheduling a rehearing for 7th May 2007.

The learned JDR opposed the appellants' prayer, citing various decisions where appeals were dismissed due to non-appearance without sufficient cause. The Apex Court dismissed a civil appeal against a CEGAT order for non-appearance. In Imperial Trading Co. v. Commissioner, the ROA application against an ex-parte order was rejected due to lack of reasons for the advocate's absence. The Tribunal in Carborandum Universal Ltd. v. Commissioner held that without sufficient cause for delay, an appeal cannot be restored. Similarly, in Sai Bottling Co. Pvt. Ltd. v. CCE, it was established that once an order is passed considering all facts, there is no justification for its recall. The Tribunal also referred to cases like Sayed Abdul Shakoor & Co. v. CCE and British India Corporation Ltd. v. CC, emphasizing the importance of evidence and reasons for non-appearance in dismissing appeals or recalling orders.

After reviewing the case records, the Tribunal noted that the appellants had sought an adjournment for the hearing on 28-11-2005 due to a legitimate reason. However, the matter was listed on 30-11-2005 without proper intimation to the authorized representative. The representative had attended previous hearings but was unaware of the rescheduled date, leading to non-appearance on 30-11-2005 and subsequently on 5-12-2005. The Tribunal found that the appellants had valid reasons for their non-appearance and lack of intimation, justifying the recall of the Final Orders. Consequently, the Tribunal allowed the application, recalling the orders dated 5-12-2005 and scheduling a rehearing for 7th May 2007 to ensure justice is served.