2014 (1) TMI 1859 - HC - Central Excise

Restoration of appeal - appeal was dismissed for want of prosecution - grievance of the appellant before the Tribunal was that the appeal reached hearing after a lapse of eight years. Unit premises, from February 16, 2002, were closed. In these circumstances, they prayed that the appeal be restored to file - Held that - The restoration application has also been dismissed and we find that from both orders, no substantial question of law arises within the meaning of section 35G of the Central Excise Act, 1944. When the appellant engaged an advocate and even the advocate did not bother to follow up the matter for eight long years and when it reached hearing, none was present, we do not see how the Tribunal can be faulted for dismissing the appeal for non-prosecution - appeal cannot be restored - appeal dismissed.

Issues: Appeal dismissal for want of prosecution, restoration application dismissal, absence of appellant and advocate, delay in reaching hearing, breach of natural justice.

Analysis:

1. Appeal Dismissal for Want of Prosecution:
The appellant filed an appeal in the Customs, Excise and Service Tax Appellate Tribunal, which was dismissed for want of prosecution as neither the appellant nor the advocate appeared during the hearing. The Tribunal noted the absence of representation on multiple occasions, leading to the dismissal. The appellant later submitted an application for restoration, citing reasons for non-appearance, including closure of unit premises and delay in reaching the hearing after eight years. However, the Court found no substantial question of law under section 35G of the Central Excise Act, 1944. The Court upheld the Tribunal's decision, emphasizing that the discretion to dismiss the appeal was fair and not arbitrary, with no breach of natural justice principles.

2. Restoration Application Dismissal:
The restoration application filed by the appellant was also dismissed by the Court. The Court observed that the appellant's claim of the notice being received with a postal remark "left" did not warrant restoration, especially considering the long delay and lack of representation during the hearing. The Court reiterated that no substantial question of law emerged from the circumstances, leading to the dismissal of the restoration application. The Court emphasized that the Tribunal's exercise of discretion in dismissing both the appeal and the restoration application was fair and not in violation of natural justice principles.

3. Absence of Appellant and Advocate:
The Court highlighted the absence of both the appellant and the advocate during the hearing as a crucial factor in the dismissal of the appeal. Despite the appellant engaging an advocate, the lack of follow-up for eight years and the subsequent absence during the hearing were considered significant by the Court. This absence was a key reason for the dismissal of the appeal for want of prosecution, as the Court found no fault in the Tribunal's decision based on the circumstances presented.

4. Delay in Reaching Hearing:
The appellant raised concerns about the delay in the appeal reaching the hearing stage after eight years. However, the Court did not find this delay as a substantial question of law under the relevant statute. The Court emphasized that the discretion exercised by the Tribunal in dismissing the appeal was reasonable and not arbitrary, given the circumstances of the case.

5. Breach of Natural Justice:
The Court explicitly stated that there was no breach of principles of natural justice in the dismissal of the appeal and restoration application. The Court found that the Tribunal's actions were not arbitrary or capricious, and the exercise of discretion was fair in light of the appellant's long absence and lack of representation. Consequently, the Court concluded that no substantial question of law arose for consideration, leading to the dismissal of the appeal without costs.

← Previous Next →