2010 (7) TMI 422 - AT - Central Excise

Appeal restoration of appeal appeal dismissed on non-availability and non-appearance of the counsel - advocate had himself chosen to leave the Tribunal on the ground that he had some other matter in another Court; that cannot be said to be a ground beyond his control to justify his non appearance before the Tribunal at the relevant time - no sufficient cause disclosed for absence of the appellant and/or his advocate on the relevant day and time, the application is liable to be dismissed

Summary

Issues: Application for restoration of appeal dismissed for default.

Analysis:
1. The appellant filed an application for the restoration of the appeal, which was dismissed for default on a specific date.
2. The appellant's application stated that the appeal was fixed for hearing before a Division Bench but was dismissed for non-appearance due to the advocate's prior engagement in another court.
3. The appellant's grounds for non-appearance included the uncertainty of adequate time for hearing due to other matters and the advocate's rush to the High Court.
4. During the hearing, the advocate mentioned that the matter was dismissed at 2.50 p.m., contrary to the usual practice of taking up kept back matters at the end of the cause list.
5. The Tribunal clarified that there was no specific practice of delaying kept back matters till the end and that requests for out-of-turn hearings were common.
6. The Tribunal noted that the advocate's assumption of inadequate time for the remaining matters was not a valid justification for leaving the Tribunal.
7. The application lacked specific details about the advocate's timings and failed to establish unavoidable circumstances for non-appearance.
8. The Tribunal emphasized that an advocate's engagement in another court cannot justify non-appearance or serve as a ground beyond their control.
9. As no sufficient cause was presented for the absence of the appellant or the advocate, the Tribunal dismissed the application for restoration of the appeal.

This detailed analysis of the judgment highlights the grounds presented by the appellant, the Tribunal's observations regarding the advocate's actions, and the ultimate decision to dismiss the application due to the lack of a valid justification for non-appearance.