2014 (1) TMI 1336 - HC - Central Excise

Dismissal of stay application - Non apperance of counsel - whether the CESTAT was justified in dismissing the application for stay for nonappearance of the appellant or his counsel - Held that - mere absence of an appellant or his counsel on one date, may not be sufficient to dismiss an application/appeal for default. Courts/Tribunals are constituted to decide disputes on merits and, therefore, dismissing an application/appeal on the first occasion of non-representation, in our considered opinion, may not be the right course to adopt. A perusal of the facts reveals that counsel for the appellant addressed a letter, Annexure A-7, to the CESTAT, praying for an adjournment as he had been advised rest on account of severe cervical pain. It appears that the letter was not placed before the CESTAT, for otherwise we are sure that the CESTAT would have adjourned hearing of the application - matter restored to CESTAT - Pre deposit demanded - Decided partly in favour of assessee.

Summary

Issues:
Dismissal of application for stay by CESTAT due to non-appearance of appellant and counsel.

Analysis:
The appellant challenged the order dated 07.10.2013 passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), New Delhi, which dismissed its application for stay. The appellant's counsel had written a letter to the CESTAT on 03.10.2013, requesting an adjournment due to severe cervical pain, but the letter was not considered by the CESTAT. The respondent argued that without material evidence of the letter being sent to CESTAT, the appeal should be dismissed. The High Court noted that while CESTAT has the right to dismiss for non-representation, absence on one occasion may not warrant dismissal. The High Court observed that the appellant's counsel had indeed requested an adjournment due to health reasons, and if the letter had been presented, CESTAT would have likely granted an adjournment.

The High Court opined that dismissing an application/appeal on the first instance of non-representation may not be the correct approach, as courts/tribunals are meant to decide disputes on merits. Instead of directing the appellant to file for restoration, causing further delays, the High Court allowed the appeal, set aside the impugned order, and restored the application/appeal to CESTAT for fresh adjudication. The appellant was directed to deposit Rs.10,000/- as costs with the Legal Services Committee, Punjab & Haryana High Court, within a month. The parties were instructed to appear before CESTAT on 24.01.2014 for further proceedings.