2014 (6) TMI 759 - HC - Central Excise

Validity of Tribunal s order for Recalling its earlier order as per the request of revenue - earlier appeal of the revenue was dismissed on technical ground - No proper authorization presented by Revenue - Held that - appeal was dismissed by the Tribunal presumably on the ground that no proper authorization had been filed by the Commissioner in support of the appeal. The Tribunal having noticed such defect, erred in proceeding to dismiss the appeal on such ground by ignoring its powers available under Rule 11(2) ibid. In all fairness, therefore, the Tribunal should have afforded an opportunity to the appellant (Revenue) to rectify the defects by taking recourse to the powers available to it under Rule 11(2) of the Rules by extending the time. It was not disputed that the Revenue did rectify the defect though after dismissal of appeal. The Tribunal, therefore, rightly entertained the application and restored the appeal for its hearing on merits. Such order could be passed by the Tribunal in its rectification jurisdiction because the order contained an error apparent on its face, it having been passed contrary to Rule 11(2). Substantial justice was done to parties because the Revenue s appeal will now be heard on the merits. So far as writ petitioner is concerned, no prejudice is caused to him because no adverse order is passed against them. He will get full opportunity to oppose the Revenue s appeal on merits - Following decision of Sangram Singh vs. Election Tribunal 1955 (3) TMI 31 - SUPREME COURT - Decided against assessee.

Summary

Issues:
Challenge to the order passed by the Customs, Excise and Service Tax Appellate Tribunal for recalling the order dated 23.09.2005 dismissing the Revenue's appeal without going into merits.

Analysis:
The High Court considered the writ petition challenging the Tribunal's decision to allow the Revenue's application for recalling the order dated 23.09.2005. The Tribunal had dismissed the Revenue's appeal on a technical ground without delving into the merits. The key issue was whether the Tribunal was justified in allowing the Revenue's application for recalling the order.

The facts of the case were straightforward. The Commissioner of Central Excise and Customs had filed an appeal against the writ petitioner before the Tribunal, which was dismissed on a technicality without considering the merits. Subsequently, the Revenue filed an application seeking the restoration of the appeal, stating that the defects had been rectified. The Tribunal, in the interest of justice, allowed the application to recall the order and proceed with hearing the appeal on merits.

The writ petitioner contended that the Tribunal had no jurisdiction to entertain the application for recalling the order as the appeal was dismissed in the presence of the appellant's representative. However, after hearing arguments from both sides, the High Court found no grounds to interfere with the Tribunal's decision. The Court cited the principle of natural justice and its wide jurisdiction to correct errors in proceedings pending before Tribunals.

The High Court emphasized that it had the authority to examine the legality and correctness of proceedings before Tribunals and correct any errors brought to its notice. Even if the Revenue had directly challenged the order under Article 227 of the Constitution, the Court would have intervened. The Tribunal's failure to provide an opportunity to rectify the defect before dismissing the appeal was noted, and the decision to restore the appeal for hearing on merits was deemed appropriate.

In conclusion, the High Court dismissed the writ petition, highlighting that substantial justice was served as the Revenue's appeal would now be heard on its merits. The Court directed the Tribunal to decide the appeal within six months, emphasizing that the decision was made without delving into the merits of the case.