2013 (9) TMI 1025 - HC - Central Excise

Summary

Issues:
The judgment involves the dismissal of an appeal on merits in the absence of the appellant's advocate, subsequent application for restoration of the appeal, and the Tribunal's dismissal of the restoration application on the ground that the appeal itself was unmeritorious.

Dismissal of Appeal on Merits:
The appeal was dismissed on 17th September, 2012 on merits in the absence of the appellant's advocate, which was deemed improper as the appeal could have been dismissed for default but not on merit without hearing the advocate. The Court found the order dismissing the appeal to be flawed due to lack of proper hearing.

Application for Restoration:
The appellant made a correct move by applying for restoration of the appeal that was dismissed ex parte. The Tribunal's dismissal of the restoration application solely on the ground that the appeal itself was unmeritorious was considered inappropriate. The Court noted that the Tribunal failed to consider if any grounds existed for recalling the ex parte order dismissing the appeal.

Lack of Application of Mind in Orders:
Both the orders dated 17th September, 2012 and 17th April, 2013 were found to have been passed without proper application of mind. The Court was satisfied that the decisions were made without due consideration or evaluation of the circumstances.

Judgment:
The Court set aside the order under challenge and also the order dated 17th September, 2012. The appeal was directed to be heard on merit by the Tribunal after fixing a suitable date and notifying the parties. Consequently, both the application for restoration and the appeal itself were disposed of by the Court.