2014 (6) TMI 194 - HC - Customs

Maintainability of appeal - Single member bench of CESTAT decided the appeal against the assessee denying the request for adjournment - similar issue was pending before the division bench of the CESTAT of the same assessee - Held that - This is a peculiar situation where the appeals filed by the Revenue as well as the petitioners ought to have been heard and decided together especially on account of the fact that the appeals had arisen from a common order. When it was brought to the notice of the Single Member of the Tribunal that the appeals were pending before the Division Bench, the said authority ought to have refrained from passing an order on merits. Under these circumstances, I am of the view that Ext.P4 is liable to be interfered with despite the fact that the petitioners have an appellate remedy. There is a peculiar situation in this case by which the petitioners will not be in a position to agitate the matter pending before the Division Bench on account of the orders passed in Ext.P4. Hence, it is necessary in the interest of justice that the petitioners should be given an opportunity to agitate their rights in the appeal and accordingly Ext.P4 is liable to be set aside - Decided in favour of assessee.

Summary

Issues:
Challenge to disposal of order when similar appeals pending before Division Bench, maintainability of writ petition, request for adjournment, disposal of appeals by Tribunal, necessity to hear and decide appeals together arising from a common order.

Analysis:

1. The petitioners challenged the Ext.P4 order as it was disposed of while similar appeals were pending before the Division Bench. The appeals pending before the Division Bench and the Tribunal arose from the same order. The petitioners sought directions to recall Ext.P4 order and consider it along with other pending appeals before the Division Bench.

2. The department argued that the writ petition was not maintainable as the petitioners had an appellate remedy. They contended that no adjournment request was made during the hearing, and the Single Member decided the matter on merits. The department suggested that the petitioners should avail themselves of the appellate remedy provided by law.

3. The petitioners, however, argued that the fate of the pending appeals before the Division Bench would be the same as those disposed of by the Tribunal. They believed that pursuing the appeal before the Division Bench would serve no useful purpose.

4. The Court noted the peculiar situation where both the Revenue's appeals and the petitioners' appeals should have been heard and decided together due to arising from a common order. The Court opined that the Single Member should have refrained from passing an order on merits upon being informed of the pending appeals before the Division Bench. The Court found it necessary in the interest of justice to set aside Ext.P4 to allow the petitioners an opportunity to present their case before the Division Bench.

5. Consequently, the Court set aside Ext.P4 and directed the Tribunal to consider all the appeals together and dispose of them following the prescribed procedure. The judgment aimed to ensure fairness and justice by allowing the petitioners to have their rights heard and decided in conjunction with the related appeals pending before the Division Bench.