2015 (7) TMI 706 - HC - Central Excise

Recalling of order - Cenvat Credit taken twice - CENVAT on yarn was allowed only from 1.4.2003 - whether the Tribunal was right in rejecting the application preferred by the appellant for recalling the order dated 26-6-2013 without examining sufficiency of the cause extended for non appearance of its counsel - Held that - From perusal of the averments contained in the application for recalling the order dated 26-6-2013, it appears that the representative of the appellant company failed to attend the proceedings before the Tribunal due to his ailment and the surgery availed by him. The Tribunal while rejecting the application aforesaid did not choose to examine correctness of the cause given but dismissed the application for the reason that the appeal was pending from last several years. - Tribunal should have examined the cause given for recalling the order and not the other issues which as a matter of fact are extraneous for examining the application for recalling earlier order. In view of it, the appeal deserves acceptance. - Decided in favour of assessee.

Summary

Issues Involved:
Appeal dismissal in absence of appellant representative, rejection of application to recall order, sufficiency of cause for non-appearance, examination of cause by Tribunal.

Analysis:

1. Appeal Dismissal in Absence of Appellant Representative:
The appellant's appeal was dismissed by the Customs Excise and Service Tax Appellate Tribunal due to the absence of the appellant company's representative during the hearing. The Tribunal observed that the appeal was eight years old, and the appellant had already benefited from an interim order for seven years. The Tribunal expressed concern about burdening itself with unwarranted appeals if orders were recalled for flimsy reasons.

2. Rejection of Application to Recall Order:
The appellant filed an application to recall the order dated 26-6-2013, citing the reason for the representative's absence as an ailment and surgery. However, the Tribunal dismissed the application on 2-12-2013 without examining the sufficiency of the cause provided by the appellant. The Tribunal's rationale for rejection was the prolonged pendency of the appeal.

3. Sufficiency of Cause for Non-Appearance:
The main contention raised was whether the Tribunal was correct in rejecting the application to recall the order without assessing the adequacy of the cause presented by the appellant for the non-appearance of their representative. The argument emphasized the necessity for the Tribunal to consider the genuineness of the reason for the absence before dismissing the application.

4. Examination of Cause by Tribunal:
Upon reviewing the application for recalling the order, the High Court found that the Tribunal erred in not examining the cause provided by the appellant for the representative's non-appearance. The Court held that the Tribunal should have focused on the reason given for the absence rather than the prolonged pendency of the appeal. Consequently, the Court allowed the appeal, setting aside the order dated 26-6-2013 and directing the Tribunal to reconsider the application with a fair hearing opportunity for both parties.

In conclusion, the High Court found the rejection of the application to recall the order unjustified due to the Tribunal's failure to assess the sufficiency of the cause for the appellant representative's non-appearance. The Court emphasized the importance of examining the reasons presented by the appellant before dismissing such applications, leading to the allowance of the appeal for a fresh hearing by the Tribunal.