2011 (3) TMI 549 - AT - Central Excise

Application for rectification - Apparently the reason for absence of the applicant and their Advocate on 11-1-2010 was that the appellants were informed by their friend that in the Bench who had heard and decided the matter on 25-9-2008, would not be available at Mumbai on 11-1-2010 and, therefore, the matter would not be heard on that day - There is no justification for absence of the applicant on the relevant day - There being no other ground disclosed for the absence of the applicant and his advocate on the date when the matter was heard and dismissed, we do not find any case having been made out for entertaining the present application - application is rejected

Summary

Issues:
1. Dismissal of application for non-prosecution due to absence of the appellants.
2. Request for reconsideration and modification of the order dated 11-1-2010.
3. Grounds for absence of the appellants and their advocate during hearings.
4. Applicability of rules regarding the hearing of review applications by the same Bench.

Analysis:
1. The Tribunal dismissed the application for non-prosecution as the appellants and their advocate were absent for three consecutive hearings. The order dated 11-1-2010 highlighted the absence of the appellants on earlier hearing dates, leading to the dismissal of their application.

2. The current application sought reconsideration and modification of the order dated 11-1-2010. It clarified that the appeal No. E/604 of 2002 was not dismissed, but an application for rectification of a mistake in the order dated 25-9-2008 was dismissed. The Tribunal's decision was based on the failure of the appellants to pursue the matter diligently.

3. The grounds cited for the absence of the appellants and their advocate on 11-1-2010 were related to misinformation received via telephone. They believed that the Bench which had previously heard the matter would not be available, hence the matter would not be heard. However, the Tribunal emphasized that such assumptions cannot justify absence, especially without concrete reasons or prior communication with the Tribunal.

4. The Tribunal clarified the rule that a review application should ideally be heard by the same Bench that decided the matter initially. However, exceptions exist when the original members are unavailable. In this case, one member had retired, and the appellants were aware that the original members were not present on the hearing date. The Tribunal emphasized that mere assumptions about the Bench's availability cannot justify absence, and litigants must communicate any objections directly to the Tribunal.

In conclusion, the Tribunal rejected the application for reconsideration due to the unjustifiable absence of the appellants and their advocate, emphasizing the importance of proper communication and adherence to procedural rules in legal proceedings.