1984 (10) TMI 219 - AT - Customs

Summary

Issues Involved:
1. Restoration of the appeal dismissed ex parte.
2. Applicability of Rule 20 of the Customs Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982.
3. Tribunal's discretion to restore an appeal.
4. Relevant precedents and judgments.

Issue-wise Detailed Analysis:

1. Restoration of the Appeal Dismissed Ex Parte:
The appellant, Heilgers Ltd., filed a miscellaneous petition for the restoration of their appeal No. C.D. (T) CAL-22/83, which was decided ex parte on 23rd May 1983. The affidavit by Shri Barun Kumar Goswami, Advocate, stated that the notice for the hearing was mislaid, resulting in non-appearance on the scheduled date. The appellant argued that there were substantial points of fact and law that needed to be considered for a just decision and that irreparable loss would occur unless the appeal was restored.

2. Applicability of Rule 20 of the Customs Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982:
The appellant's counsel, Shri S.C. Ukil, argued that the Tribunal should exercise its discretion under the proviso to Rule 20, which allows for the restoration of an appeal dismissed for default if sufficient cause is shown. He cited the Supreme Court judgment in Rafiq and another v. Munshilal and another (AIR 1981 S.C. 1400) to support the argument that an innocent party should not suffer due to the inaction or omission of its counsel.

3. Tribunal's Discretion to Restore an Appeal:
The respondent's counsel, Shri A.K. Chatterjee, countered that the Tribunal had already decided the appeal on merits and not merely dismissed it for default. Therefore, the proviso to Rule 20 was not applicable. He emphasized that once the Tribunal exercises its discretion to decide on merits, there is no provision for restoring the appeal.

4. Relevant Precedents and Judgments:
The Tribunal examined several legal provisions and precedents:
- Section 129B of the Customs Act, 1962, and Section 254 of the Income Tax Act, 1961, both allow the Tribunal to pass orders as it thinks fit after giving parties an opportunity to be heard.
- Rule 20 of the Customs Excise & Gold Control Appellate Tribunal (Procedure) Rules, 1982, and Rule 24 of the Income-tax Appellate Tribunal (Procedure) Rules, 1963, both provide for dismissal of an appeal for default but allow restoration if sufficient cause is shown.
- The Supreme Court in Commissioner of Income-tax, Madras v. S. Chenniappa Mudaliar (AIR 1969 S.C. 1068) held that the Tribunal must decide appeals on merits and cannot dismiss them solely for non-appearance.
- The Tribunal noted that exercising discretion to restore the appeal would conflict with Section 129B(1) of the Customs Act, 1962, which does not provide for reviewing its own orders except for rectifying mistakes under Section 129B(2).

Conclusion:
After considering the arguments and legal provisions, the Tribunal concluded that the ex parte order dated 23rd May 1983 was correct in law. The Tribunal found no provision under the Customs Act, 1962, to review its own order, and no mistake was argued or alleged in the order. Consequently, the appellant's miscellaneous application for restoration of the appeal was dismissed.