2015 (10) TMI 153 - AT - Central Excise

Validity of impugned order - Exparte order - Held that - appellant s factory is closed since November, 2004. The appeal by the appellant company and its Directors, against the impugned order were filed in November, 2005. When the factory was closed since November, 2004, we fail to understand as to why in the column in Memorandum of appeal for the address for communication , it is the address of the factory which was given and not any other address where the appellant company had its office. It is also seen that in the memorandum of appeal, in addition to the factory address, the address of the appellant s Counsel V.Laxmi Kumaran, Advocate, B-6/10, Safdarjung Enclave, New Delhi 110029 had also been given - Though the appellants Counsel withdrew his appearance sometime in January, 2014, thus, since, January, 2014, other than the factory address of the appellant which was closed there was no address to which any directions to them regarding date of hearing could be communicated, if the appellant were really serious in pursuing the appeal they should have given the same other address for communication at which they would be available and not the address of the factory which was closed since one year prior to filing of the appeal - ppellant has not cooperated at all with the Tribunal in this regard. We, therefore, are not convinced with the reasons given by the appellant for restoration of the appeal - Decided against assessee.

Summary

Issues:
1. Failure to appear for hearing and subsequent dismissal of appeals.
2. Application for restoration based on non-receipt of notice.
3. Arguments for and against restoration of appeals.
4. Consideration of relevant case laws in deciding the restoration application.

Issue 1: Failure to Appear for Hearing and Subsequent Dismissal of Appeals

The appeals were filed against the Commissioner's order confirming a duty demand and imposing penalties. The appellants failed to appear for the final hearing on 22.01.2014, leading to the dismissal of the appeals. The appellants later filed applications for restoration, claiming they did not receive the notice for the hearing.

Issue 2: Application for Restoration Based on Non-Receipt of Notice

The appellant's counsel argued that due to the closure of the factory since November 2004, they did not receive the notice of the Tribunal's order dated 22.01.2014. The appellants only became aware of the order when the Department initiated recovery proceedings. They applied for restoration based on genuine reasons for non-appearance, citing relevant judgments supporting the recall of orders for fresh hearings in similar circumstances.

Issue 3: Arguments for and Against Restoration of Appeals

The appellant's counsel pleaded for the restoration of the appeals, emphasizing the lack of notice receipt due to the closed factory and referencing legal precedents highlighting the right to a fresh hearing in cases of non-appearance. However, the Department's representative opposed the restoration applications, arguing that the appellant should have provided an alternative communication address and that the appeals were correctly decided ex-parte considering the circumstances.

Issue 4: Consideration of Relevant Case Laws in Deciding Restoration Application

The Tribunal considered the submissions from both sides and examined the records. It noted that the appellant's factory had been closed since November 2004, questioning why the factory address was provided for communication in the appeal memorandum instead of an active office address. The Tribunal referred to the judgments of the Apex Court and High Courts, emphasizing the importance of a genuine reason for non-appearance and cooperation in providing a valid communication address. Ultimately, the Tribunal dismissed the restoration applications, highlighting the appellant's lack of cooperation in providing a reachable address for communication.

This detailed analysis covers the issues of failure to appear for the hearing, application for restoration, arguments presented, and the consideration of relevant case laws in deciding the restoration application in the legal judgment by the Appellate Tribunal CESTAT NEW DELHI.