2015 (10) TMI 2279 - HC - Central Excise

Restoration of appeal - Appeal barred by limitation - Held that - Joint Commissioner s order which was challenged is dated 1st April, 2007. That was challenged before the Commissioner (Appeals) Central Excise and Customs, Vapi. Before the Commissioner, the argument was that the appeal is not barred by limitation as the petitioner had no knowledge of the order of the Joint Commissioner. It was in winding up inasmuch as the BIFR had recommended in the month of November, 2006 / January 2007, that the petitioner be wound up. This recommendation / reference of the BIFR was treated as a suo moto petition for winding up by this Court and that is how the proceedings commenced and this Court eventually passed the order of winding up. It is during this time that it is stated that all the operations and activities at the factory came to a standstill. There was closure notice and the factory was closed. It is, therefore, impossible for the petitioner to have been aware of an order stated to be pasted on its factory gate. Once all operations were closed and the factory was not operating, then, the appeal filed before the Commissioner (Appeals) could not be said to be barred by limitation. Once the earlier dismissal of the appeal on merits was exparte, then, the Tribunal could have, by some conditions being imposed, recalled the order and gave a chance to the appellant-petitioner to argue the appeal on its merits. We find that the above perfunctory manner of disposal of the appeal on two occasions and in the absence of the petitioner and its advocates does not sub-serve the larger interest of justice. It is, therefore, in the peculiar facts and circumstances of this case that we set aside the orders dated 29th May, 2009 and 11th April, 2014 and direct that the appeal of the petitioner be restored to the file of the Tribunal - Decided in favour of assessee.

Summary

Issues involved:
1. Appeal dismissed by Tribunal on merits without hearing petitioner's side.
2. Dismissal of appeal based on limitation issue.
3. Petitioner's request for restoration of appeal.
4. Application for restoration dismissed by Tribunal.
5. Comparison with previous judgments.
6. Arguments presented by both sides.
7. Consideration of facts and circumstances.
8. Decision on setting aside Tribunal's orders and restoring appeal.

Issue 1: Appeal dismissed by Tribunal on merits without hearing petitioner's side
The petitioner, a manufacturer registered with Central Excise, faced financial difficulties leading to winding up proceedings. The Commissioner (Appeals) dismissed the appeal on the ground of limitation, without considering the merits. The Tribunal also dismissed the appeal without hearing the petitioner's side, citing the inability to condone the delay beyond the statutory period.

Issue 2: Dismissal of appeal based on limitation issue
The Tribunal found that the appeal was filed almost six months after the order was pasted on the factory gate during winding up. The Tribunal upheld the dismissal based on the lack of power to condone the delay beyond the statutory period under the Central Excise Act, referencing relevant judgments.

Issue 3: Petitioner's request for restoration of appeal
The petitioner filed an application for restoration, citing reasons for absence during the Tribunal's initial order. The application sought to restore the appeal for a hearing on merits and in accordance with the law, emphasizing the challenges faced during winding up proceedings.

Issue 4: Application for restoration dismissed by Tribunal
The Tribunal dismissed the restoration application, noting a previous dismissal and reiterating the lack of power to condone the delay beyond the statutory period. The Tribunal emphasized the application was dismissed due to the inability to adjourn the matter and the delay in filing the appeal.

Issue 5: Comparison with previous judgments
The petitioner referenced judgments by the Hon'ble Supreme Court and previous decisions in similar cases to support their argument for restoration. The respondent argued that the dismissal on merits by the Tribunal precluded the application of previous judgments.

Issue 6: Arguments presented by both sides
The petitioner argued for the restoration of the appeal based on unique circumstances during winding up, while the respondent contended that the dismissal on merits by the Tribunal rendered previous judgments inapplicable.

Issue 7: Consideration of facts and circumstances
The Court considered the petitioner's challenges during winding up proceedings, the dismissal of the appeal on limitation grounds, and the absence of a fair hearing before dismissing the appeal by the Tribunal.

Issue 8: Decision on setting aside Tribunal's orders and restoring appeal
After analyzing the peculiar circumstances of the case, the Court set aside the Tribunal's orders and directed the restoration of the appeal for a fresh hearing on merits and in accordance with the law. The Court imposed a cost of Rs. 25,000 as a condition precedent to be paid to the respondent within four weeks.

This detailed analysis covers the issues involved in the legal judgment, providing a comprehensive overview of the proceedings and the Court's decision.