2014 (10) TMI 185 - HC - Customs

Restoration of appeal before tribunal - whether Tribunal was justified in dismissing the application made by the appellant (assessee) for recalling of the earlier orders passed by the Tribunal while dismissing their appeal for want of prosecution - Held that - Mere perusal of the afore quoted order would go to show that the appellant has no case and we are unable to find any error in aforementioned finding of the Tribunal. In fact the appeal does not involve any substantial question of law as is required to be made out under Section 130 ibid. The Tribunal was therefore right in dismissing their application - When on successive occasions, the appellant did not appear and nor took interest in prosecution of their appeal, the Tribunal had no option but to dismiss the appeal for want of prosecution. No one prevented the appellant from prosecuting their appeal as and when listed before the Tribunal. It was thus a clear case of either casualness or negligence on the part of the appellant in prosecuting their appeal before the Tribunal and that too with no sufficient cause necessary for recalling of the ex parte order. In this view of the matter, no further indulgence could then be claimed either before the Tribunal or before this Court in this appeal by the appellant and when claimed, it was rightly declined by the Tribunal and we concur with the same - it was not a case where appellant was not afforded any opportunity of being heard whereas it was a case where the appellant despite grant of adequate opportunity, failed to avail of it - Decided against the assessee.

Summary

Issues:
Appeal under Section 130 of the Customs Act, 1962 against the Tribunal's order dismissing application for restoration and setting aside of earlier orders due to absence of the appellant.

Analysis:

1. Issue of Dismissal of Application for Restoration:
The appellant filed an appeal under Section 130 of the Customs Act, 1962 against the Tribunal's order dismissing their application for restoration and setting aside of earlier orders passed in their absence. The Tribunal had dismissed the application, citing the appellant's repeated absence and lack of seriousness in prosecuting their appeal. The Tribunal emphasized that justice must not only be rendered but also be seen to have been rendered by a reasoned and speaking order. The Tribunal found the appellant's approach to be burdensome and an abuse of the legal process, leading to the dismissal of the application.

2. Question of Justification for Dismissal:
The central question in this appeal was whether the Tribunal was justified in dismissing the appellant's application for recalling the earlier orders and restoring the appeal for a hearing on merits. The Tribunal noted the appellant's continuous absence and lack of interest in prosecuting their appeal, leading to the dismissal for want of prosecution. The Tribunal highlighted that despite being granted adequate opportunities, the appellant failed to avail them, indicating either casualness or negligence on their part.

3. Evaluation of Tribunal's Decision:
Upon reviewing the Tribunal's decision, the High Court concurred with the findings. The High Court observed that the appeal did not involve any substantial question of law as required under Section 130 of the Customs Act, 1962. The High Court agreed that the Tribunal was justified in dismissing the application due to the appellant's consistent non-appearance and lack of diligence in prosecuting the appeal. The High Court emphasized that the appellant had been given sufficient opportunities but failed to utilize them, leading to the dismissal for want of prosecution.

4. Conclusion and Dismissal of the Appeal:
The High Court concluded that the appellant had not made a case for entertaining the appeal as it did not involve any question of law, let alone a substantial one. The Court noted that the appellant had been afforded opportunities to be heard but failed to take advantage of them. Consequently, the appeal was dismissed in limine, with no order as to costs. The High Court upheld the Tribunal's decision to dismiss the application and declined any further indulgence to the appellant, emphasizing the importance of diligence and seriousness in legal proceedings.