2013 (1) TMI 730 - HC - Central Excise

Waiver of pre deposit - Appeal for recall of ex parte order dismissed - Held that - Tribunal has power to pass any order for the ends of justice. Furthermore the proviso to Rule 20 even enables the learned Tribunal to recall ex parte dismissal of an appeal. It could not possibly have been the intention of the Rules that the learned Tribunal would lack power to recall and/or modify an ex parte interim order when it has expressly been conferred the power to recall an ex parte dismissal of the appeal. - Tribunal has apparently not considered the application for recalling of the order dated 10th July 2012 on merits but has dismissed the application on the misconceived view that the order could not be recalled and/or modified. - Order of tribunal not sustainable - Decided in favour of assessee.

Summary

Issues:
Challenge to ex parte order directing pre-deposit of duty during appeal pendency
Challenge to dismissal of application for recalling/modification of ex parte order
Interpretation of Tribunal's power to modify interim orders for the ends of justice

Analysis:
The writ application was filed to challenge an ex parte order by the Customs, Excise, and Service Tax Tribunal directing pre-deposit of 50% duty demanded during the pendency of the appeal. The Tribunal's order required compliance, failing which the appeal would be dismissed without further notice. Additionally, the petitioner contested the dismissal of their application seeking to recall or modify the ex parte order. The Tribunal had dismissed the application citing a lack of power to modify its own orders, but extended the compliance time by four weeks. The High Court held that the Tribunal's decision on the modification of the order was misconceived, emphasizing that an order directing pre-deposit is interim and subject to variation. Rule 41 of the Tribunal's Procedure Rules empowers the Tribunal to make necessary orders to secure justice.

The High Court further elaborated that the Tribunal possesses the authority to pass orders in the interest of justice. Referring to Rule 20's proviso, the Court highlighted that the Tribunal can even recall an ex parte dismissal of an appeal, indicating that the Tribunal should not lack the power to modify or recall an interim order when granted the authority to recall a dismissal. Rule 41 explicitly grants the Tribunal the power to pass any order or direction to secure justice, enabling modification or recall of interim orders. The Court criticized the Tribunal for not considering the application for recalling the order on its merits and instead dismissing it based on a flawed understanding of its powers.

Consequently, the High Court deemed the impugned order unsustainable in law and ordered its setting aside and quashing. The Tribunal was instructed to reconsider the application in light of the Court's observations. The writ application was disposed of with no order as to costs, concluding the judgment.