2014 (10) TMI 300 - AT - Central Excise

Restoration of appeals - Appeal dismissed for bar of limitation - Held that - When a final order has been passed on merits, unless there is an error apparent from the order, the same cannot be modified or reviewed. In this case even though the appellant was not represented, the order has been passed on merits. The submissions made by the appellants in the appeal memorandum and the papers have been taken into account. If the appellant did not file affidavit of the consultant and did not file the affidavit of the Director by that time and if the same is submitted now it would only mean that the defects or omissions on the part of the appellant have been made good subsequently. This cannot be considered as an error on the part of the Tribunal at the time of passing the order. I cannot go into the merits of the case for the appellant in seeking condonation of delay when there is no error apparent from the order passed by the Tribunal. Any such order that may be passed would amount a review of the order passed by the very same Tribunal which is clearly the Tribunal is not empowered to do - Restoration denied.

Summary

Issues: Restoration of dismissed appeals, Condonation of delay

Restoration of dismissed appeals:
The appellant sought restoration of appeals dismissed due to an ex parte order. The appellant's counsel argued that they could not present all facts during the initial order. They submitted an affidavit from the Director stating non-receipt of the hearing intimation and another affidavit from the consultant explaining a delay due to a fracture. The counsel pointed out a similar case where condonation of delay was allowed by the Tribunal. The appellant requested restoration of the appeals based on these grounds.

Condonation of delay:
The learned AR opposed the restoration, stating that the order dismissing the appeals was based on merits after considering the submissions in the appeal memorandum. The AR argued against condoning the delay, emphasizing that the receipt of the order by an employee should be considered as received by the company, making delay non-condonable. The AR contended that the rejection of the application for condonation was justified.

The judge considered both sides' submissions and concluded that once a final order is passed on merits, it cannot be modified or reviewed unless there is an apparent error. Despite the appellant's absence during the initial order, the order was passed on merits, considering the submissions and documents. The judge noted that submitting affidavits later to rectify omissions does not constitute an error on the Tribunal's part at the time of the order. The judge clarified that without an apparent error, delving into the case's merits for condonation of delay would amount to reviewing the Tribunal's own order, which is beyond its power. Consequently, due to the inability to review the order, the applications for restoration of the appeal were rejected.