2010 (11) TMI 332 - AT - Central Excise

Appeal to Appellate Tribunal - Restoration of - The appellants filed application for restoration being ROA - It is settled law that once such application is disposed of only remedy available to the aggrieved party is before the higher authorities and not before the same authority unless the party is able to point out an error apparent on the face of the order passed while disposing such application - Merely because the party had opted intentionally or otherwise to omit a particular ground in the earlier application that does not give right to the party to file another application incorporating such ground once the previous application has been finally disposed of - Tribunal taking into consideration all the facts relevant for deciding whether the appeal deserves to be restored or not disposed of the application by passing a reasoned order - The issue of restoration of appeal is concerned therefore this Tribunal became functus oficio on passing of such order - It is not permissible for the party to reagitate and for the same reason for the Tribunal to reconsider the said issue under another application. Appeal - The party as well as advocate were fully aware that the matter was fixed for hearing on 8th of April 2010 and in fact the advocate was very much present during the morning session in the Tribunal - Thus the appeal that the party is penalised for absence of his advocate is rejected. Inherent powers of the Tribunal - The same cannot be exercised as a matter of course - The party desiring the Tribunal to exercise such powers has to make out a case for the same - Find no substance in the application and the same is dismissed.

Summary

Issues:
Application for restoration of appeal based on default in appearance by the advocate, maintainability of second restoration application, inherent power of the Tribunal to entertain such application.

Analysis:
The judgment revolves around an application for restoration of an appeal due to default in appearance by the advocate. The appellants relied on a Supreme Court decision to argue that they should not suffer due to the advocate's absence. They contended that the appeal should be restored based on settled law regarding default in appearance by the advocate.

The Tribunal considered a previous restoration application and highlighted that once such an application is disposed of, the only remedy available is before higher authorities unless an error apparent on the face of the order is pointed out. In this case, the new application was based on a different ground, which does not allow for filing another application after the previous one has been finally disposed of.

The Tribunal emphasized that it became functus officio upon passing a reasoned order on the previous restoration application. It stated that re-agitating the issue of restoration under a new application is impermissible. The judgment clarified that the Supreme Court decision cited by the appellants did not apply to the current situation as the circumstances differed, and the previous restoration application had already been disposed of by a reasoned order.

Regarding the inherent powers of the Tribunal, it was noted that they cannot be exercised as a matter of course. The party seeking the Tribunal to exercise such powers must establish a case for it, which the applicants failed to do in this instance. Consequently, the Tribunal found no merit in the application and dismissed it based on the reasons provided in the judgment.