2008 (12) TMI 725 - HC - Central Excise

Summary

Issues:
Challenging order of Customs, Excise & Service Tax Appellate Tribunal; Non-consideration of statements in application for recalling the order; Dismissal of appeal for non-compliance of Section 35F of Central Excise Act, 1944; Setting aside and quashing of orders dated 23rd September, 2008 and 27th November, 2008; Direction to Tribunal for fresh hearing; Allegations deemed not admitted; Granting of writ petition.

Analysis:
The writ petition challenged an order passed by the Customs, Excise & Service Tax Appellate Tribunal on the grounds that the petitioner was not informed of the hearing date, preventing their appearance during the order's passing. Subsequently, an application for modification of the order was filed, which was partly rejected by the Tribunal. The petitioner contended that their reply to the show cause notice was ineffective, supported by a letter from the Senior Intelligence Officer. The Tribunal later dismissed the appeal for non-compliance with statutory provisions. The High Court noted that the Tribunal failed to consider crucial statements in the application for recalling the original order and did not address the letter from the Senior Intelligence Officer. Consequently, the High Court set aside and quashed the Tribunal's order dated 23rd September, 2008.

In regard to the order dated 27th November, 2008, the High Court observed that the Tribunal, being aware of the pending writ petition challenging the initial order, should have proceeded cautiously. As the Tribunal did not act prudently, the High Court also set aside and quashed the order dated 27th November, 2008. The Tribunal was directed to rehear the application for recalling the original order, affording the petitioners a fair hearing opportunity. Moreover, since the respondents were not required to file counter-affidavits, the allegations in the writ petition were deemed unadmitted. Ultimately, the High Court allowed the writ petition partially, with no costs imposed on either party, and ordered urgent provision of a certified copy of the judgment to the concerned parties.