2011 (1) TMI 183 - AT - Customs

Recalling of the order - appeal was being adjourned either at the request of the applicant or otherwise in the interest of the justice when the applicant was not represented - Receiving back of the notice by the postal authority with the remarks left indicates that the appellants are not available at the address given to the registry - appellants have not intimated any change of address for service of notice of hearing - no reason justifiable to keep the appeal on record and the same is accordingly dismissed for non prosecution

Summary

Issues: Non-appearance of the applicant, repeated adjournments, recall of ex-parte order, dismissal for non-prosecution.

Non-appearance of the applicant:
The judgment notes the absence of the applicant during the hearing despite the notice being sent. The notice of hearing was returned with postal remarks left, indicating non-receipt by the applicant. It is highlighted that the applicant was not represented during the passing of the order for recalling the earlier decision. The applicant's failure to notify any change of address for service of notice is also mentioned, along with the non-appearance of the learned Advocate, leading to the issue of non-representation.

Repeated adjournments:
The judgment points out that the matter had been adjourned multiple times, either at the applicant's request or in the interest of justice. Despite the appeal being decided initially and then recalled due to being passed ex-parte, the subsequent hearings faced adjournments, contributing to the delay in final disposal.

Recall of ex-parte order:
After the initial rejection of the appeal, the applicant filed for a recall of the order, which was granted based on it being passed ex-parte. However, it is noted that the applicant was not present during the passing of the order for recalling, raising procedural concerns regarding representation and participation in the legal proceedings.

Dismissal for non-prosecution:
Due to the repeated non-appearance of the applicant, failure to update the address for service of notice, and lack of representation by the learned Advocate, the Tribunal found no justifiable reason to continue with the appeal on record. Consequently, the appeal was dismissed for non-prosecution, emphasizing the importance of active participation and compliance with procedural requirements in legal proceedings.