2010 (9) TMI 730 - AT - Central Excise

Non-availability of their advocate for hearing on 25th May, 2010 - it is undisputed fact that it was to the knowledge of the respondents, though it might have been subsequently acquired, that when the matter came up for hearing on 25th May, 2010, the Tribunal was not apprised of any such letter having been sent by the respondents - It is not known as to why the same was not disclosed in the application and why the respondents had to wait till the date of today s hearing to contend that the proof thereof could be verified from the inward register by verifying whether the same was entered at Serial No. 186 on 24th May, 2010 or not - Letter discloses that the respondents were fully aware that ROA Application No. 04 of 2009 was not disposed of even on 23rd October, 2009 and the hearing in that regard was fixed on 26th October, 2009 and, therefore, had sought adjournment of the same - learned advocate for the respondents has also submitted that on merits the respondents cannot dispute the correctness of the order dated 25th May, 2010 Regarding bar limitation - It is settled law that when a party files an application for recall of an final order, it is not only necessary for the party to justify the absence of the party on the day when the matter had proceeded ex parte, but should also disclose the grounds of challenge which could be said to have been omitted from consideration or not considered by the Tribunal which could have influenced its decision - As already pointed out above, while dealing with this aspect there is clear observation in the order dated 25th May, 2010 as to why we have considered the issue of limitation and it does not require further deliberation in this order - Application stands disposed of

Summary

Issues Involved:
1. Recall of the final order dated 25th May, 2010.
2. Grounds for non-appearance of the respondents' advocate.
3. Justification for adjournment request via letter.
4. Consideration of the issue of limitation.

Detailed Analysis:

1. Recall of the Final Order Dated 25th May, 2010:
The application for recall of the final order dated 25th May, 2010, and restoration of the appeal was primarily based on the argument that the registry failed to inform the Bench about the respondents' application dated 24th May, 2010, which notified the non-availability of their advocate for the hearing on 25th May, 2010. Consequently, the matter proceeded ex parte and was disposed of accordingly.

2. Grounds for Non-appearance of the Respondents' Advocate:
The advocate for the respondents argued that the non-appearance on 25th May, 2010, was due to the advocate's illness, treated by his daughter, a medical practitioner. Despite the absence of proof of sickness, the advocate's statement should be accepted as proof, given his status as an officer of the Court. The Tribunal noted that the application did not disclose any other grounds for recall apart from the non-availability of the advocate.

3. Justification for Adjournment Request via Letter:
The respondents' advocate contended that seeking adjournment by sending a letter to the registry was a common practice. The letter dated 24th May, 2010, was placed on record during the arguments, indicating the advocate's illness and inability to attend the hearing on 25th May, 2010. However, the Tribunal observed that the letter was not presented to the Bench on the day of the hearing, and there was no proof of the advocate's sickness. The Tribunal emphasized that such applications should be presented in open Court and well in advance to ensure proper intimation and consideration.

4. Consideration of the Issue of Limitation:
The respondents' advocate argued that the issue of limitation was not considered by the Tribunal and should be remanded to the Commissioner (Appeals). The Tribunal noted that the application for restoration did not mention the issue of limitation. The final order dated 25th May, 2010, had already addressed the bar of limitation, stating that the respondents failed to provide evidence of the Department's prior knowledge of the use of another person's brand name. The Tribunal held that the issue of limitation is a mixed question of law and fact, which the Tribunal is empowered to decide. The Tribunal found no grounds to recall the order or restore the appeal, as the issue of limitation had been duly considered.

Conclusion:
The application for recall of the final order dated 25th May, 2010, was dismissed. The Tribunal found no justifiable cause for recall, as the grounds for non-appearance and adjournment request were not sufficiently substantiated. The issue of limitation had already been addressed in the final order, and no further deliberation was deemed necessary. The application stood disposed of accordingly.