2015 (2) TMI 967 - AT - Central Excise

Recall of final order - Ex-parte order passed - Wrong Date of hearing noted down mistakenly - Held that - Matter had been decided ex parte and the Revenue's appeal has been allowed following the Apex Court's judgment in the case of Ind -Swift Laboratories (2011 (2) TMI 6 - Supreme Court), subsequently, it has been found that interpreting the above judgement , Hon'ble Karnataka High Court in the case of CCE , Bangalore Vs. Bill Forge Pvt. Ltd. (2011 (4) TMI 969 - KARNATAKA HIGH COURT) has held that in the cases where the cenvat credit has been taken wrongly but the same had not been utilized, there would not be interest liability and that interest liability would arise only in the cases where the wrongly taken cenvat credit had also been utilized. It is seen that same view had been taken by the Hon'ble Madras High Court in the case of M/s. Strategic Engg . (P) Ltd. (2014 (11) TMI 89 - MADRAS HIGH COURT) . It is also seen that the judgment of the Karnataka High Court in the case of M/ s.Bill Forge Pvt. Ltd. (supra) has been followed by this Tribunal in the case 2014 (7) TMI 849 - CESTAT NEW DELHI . According to the respondent, their case is covered by the above mentioned judgements of the Hon'ble Karnataka High Court and Madras High Court as in their case, there was no utilization of the wrongly availed cenvat credit. Since at the time of hearing of this matter on 23.12.2013, Revenue's appeal was disposed of ex parte and decided in the Revenue's favour , as there was nobody representing the respondent, the above mentioned judgements of the High Courts; which were favourable to the Respondent could not be considered. In my view, as held by the Tribunal in the case of Hindustan Ferro and Industries Ltd. (2009 (9) TMI 772 - CESTAT NEW DELHI), the assessee should not be made to suffer for any failure on the part of the Advocate. The Final Order dated 23.12.2013 therefore needs to be recalled and the matter needs to be re-heard on the question as to whether the judgements of Hon'ble Madras High Court and Karnataka High Courts are applicable to the facts of this case. - Order recalled.

Summary

Issues Involved:
1. Application for recall of ex parte order.
2. Failure to appear at the time of hearing.
3. Interpretation of judgments regarding interest liability on wrongly availed cenvat credit.
4. Application of legal principles for recalling ex parte order.
5. Advocate's mistake leading to non-appearance.
6. Applicability of High Court judgments on the case.
7. Consideration of Advocate's failure in deciding recall of order.

Analysis:

1. The judgment deals with an application for the recall of a Final Order where the Revenue's appeal had been allowed in an ex parte manner due to the absence of the respondent's representation at the time of hearing.

2. The respondent's counsel admitted to mistakenly noting down the wrong date for the next hearing, leading to their non-appearance. The question arose whether the Final Order should be recalled and the appeal restored considering the circumstances of the non-appearance.

3. The judgment discusses the interpretation of judgments regarding interest liability on wrongly availed cenvat credit, highlighting that interest liability arises only when the wrongly taken credit has been utilized, as per judgments of the Hon'ble Karnataka and Madras High Courts.

4. The Tribunal considered the legal principles for recalling an ex parte order, emphasizing that the assessee should not suffer due to the advocate's failure, as seen in previous rulings like Hindustan Ferro and Industries Ltd.

5. The advocate's mistake in noting down the date incorrectly was acknowledged, leading to their non-appearance at the hearing, which became a crucial factor in deciding the recall of the Final Order.

6. The judgment discussed the applicability of High Court judgments on the case, citing that the case was covered by favorable judgments of the Hon'ble Karnataka and Madras High Courts due to the non-utilization of wrongly availed cenvat credit.

7. Considering the above factors, the Final Order was recalled, and the appeal was restored for re-hearing to determine the applicability of the High Court judgments to the case, emphasizing the importance of not penalizing the assessee for the advocate's mistake.

This detailed analysis of the judgment covers the issues involved comprehensively, providing a clear understanding of the legal proceedings and decisions made by the Tribunal.