2008 (3) TMI 527 - AT - Central Excise

Restoration of Appeal - Appeal to Appellate Tribunal - Held that - if this Tribunal has power to allow an application for withdrawal of appeal, it also has the power to allow, on sufficient grounds, an application for withdrawal of such an application. Rule 41 enables this Tribunal to pass such orders or issue such directions as may be necessary to meet the ends of justice in a given case. Appeal restored - application allowed.

Summary

Issues:
1. Restoration of appeal and correction of mistake in the cause-title of Final Order.
2. Power of the Tribunal to restore an appeal after withdrawal.
3. Interpretation of Section 11C Notification regarding duty and penalty liabilities.

Analysis:
1. The judgment dealt with two applications by the appellants: one for restoration of the appeal and the other for correcting a mistake in the cause-title of the Final Order. The appeal was against duty demand and penalty imposition for a specific period. A subsequent Notification by the Central Govt. exempted duty payment for a different period, leading the appellants to withdraw the appeal. However, they later regretted this decision. Citing case laws, the appellants argued for the restoration of the appeal, which the Tribunal considered under Rule 41 of the CESTAT (Procedure) Rules, 1982.

2. The Tribunal deliberated on the power to restore an appeal after withdrawal, drawing parallels between Section 151 of the Code of Civil Procedure and Rule 41 of the CESTAT Rules. The Tribunal acknowledged that if it could allow withdrawal of an appeal, it could also permit withdrawal of an application for withdrawal of appeal to serve the ends of justice. The Tribunal accepted the proposition that it had the authority to recall the final order and restore the appeal based on sufficient grounds to meet the ends of justice in a given case.

3. The judgment highlighted a contentious issue concerning the impact of the Section 11C Notification on the appealable order passed by the Commissioner. The appellants were concerned about the penalty imposed, questioning whether the Notification absolved them of both duty and penalty liabilities. The Tribunal recognized the need to address whether the Notification eliminated the entire liability imposed by the Commissioner. Consequently, the Tribunal allowed the application for restoration of the appeal, recalling the Final Order and dismissing the application for correcting the mistake. The appeal was scheduled for further proceedings on a specified date.