2012 (10) TMI 140 - AT - Central Excise

ROA - Cenvat credit demand and penalty Held that - Respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice - power to set aside an order passed ex parte against the respondent before it if it is found that the respondent had, for sufficient cause, been unable to appear - ROA is allowed.

Issues:
- Recall of ex parte order and restoration of appeal due to non-appearance of Counsel representing the respondent.
- Application for restoration of appeal based on the grounds of non-appearance of Counsel and unawareness of respondent.
- Legal principles governing the recall of ex parte orders and restoration of appeals.
- Applicability of the judgment in the case of J.K. Synthetics Ltd. v. C.C.E. to the current case.

Detailed Analysis:

1. Recall of Ex Parte Order and Restoration of Appeal:
The Tribunal had initially allowed the Revenue's appeal against the order of the Commissioner (Appeals) setting aside the Cenvat credit demand and penalty against the respondent in an ex parte order. The respondent, M/s. Mithila Malleables (P) Limited, filed an application for restoration of the appeal, citing the non-appearance of their Counsel at the time of the hearing. The Tribunal considered the grounds presented and the subsequent applications filed by the respondent, leading to a detailed examination of the matter.

2. Application for Restoration Based on Non-Appearance of Counsel:
The Counsel representing the respondent, M/s. Mithila Malleables (P) Limited, had failed to appear during the hearing, resulting in the ex parte decision. The respondent claimed they were unaware of their Counsel's non-appearance and sought the recall of the order and restoration of the appeal. Legal arguments were presented by both parties, with the respondent relying on the judgment in the case of J.K. Synthetics Ltd. v. C.C.E. to support their plea for the recall and rehearing of the matter.

3. Legal Principles Governing Recall and Restoration:
The Tribunal considered the legal principles surrounding the recall of ex parte orders and restoration of appeals. Reference was made to the judgment in the case of J.K. Synthetics Ltd. v. C.C.E., emphasizing the importance of ensuring justice when a party is unable to appear for reasons beyond their control. The Tribunal examined relevant rules and precedents to determine the applicability of these principles to the current case.

4. Applicability of J.K. Synthetics Ltd. v. C.C.E. Judgment:
The Tribunal, after careful consideration of submissions from both sides and perusal of records, found merit in the respondent's argument regarding the non-appearance of their Counsel. Citing the judgment in J.K. Synthetics Ltd. v. C.C.E., the Tribunal acknowledged that when a party is unable to appear due to sufficient cause, the ex parte order should be recalled to uphold justice. Consequently, the Tribunal recalled the Final Order related to M/s. Mithila Malleables (P) Limited, restored the appeal to its original number, and allowed the application for restoration, thereby disposing of the earlier application filed by the respondent.

This detailed analysis of the judgment highlights the procedural and legal considerations involved in the recall of an ex parte order and the restoration of an appeal due to the non-appearance of Counsel, emphasizing the importance of ensuring justice and fairness in legal proceedings.

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