2013 (11) TMI 1098 - AT - Central Excise

Recall of Final order appeal dismissed for non-prosecution Held that - When the advocate is appearing before the bench and seeking adjournment, it cannot be said that the appellant is not interested in pursuing the appeal and dismissal of the same for the non-prosecution is not appropriate Re-call of order allowed.

Summary

Issues:
Recalling of final order for non-prosecution

Analysis:
The judgment pertains to a miscellaneous application filed for recalling the final order dated 20.07.2011, wherein the appeal was dismissed for non-prosecution. The advocate representing the appellant had sought an adjournment on the grounds that another advocate, who was supposed to argue the case, was facing personal difficulties and could not appear. Despite the appellant's presence and request for adjournment, the bench concluded that the appellant was not keen on pursuing the appeal, leading to its dismissal.

The main contention raised by the appellant's advocate was that the dismissal for non-prosecution was unjustified as the junior advocate appearing before the bench and seeking adjournment on behalf of the appellant indicated the appellant's interest in pursuing the appeal. The advocate argued that the dismissal was not in accordance with the law and should be reconsidered.

In the judgment, the presiding judge agreed with the appellant's advocate, stating that when an advocate is present before the bench and seeks an adjournment, it cannot be assumed that the appellant is not interested in pursuing the appeal. The judge deemed the dismissal for non-prosecution inappropriate and decided to recall the order, allowing the appellant's application. The appeal was then fixed for final disposal on 17.07.2013.