2016 (4) TMI 63 - HC - Central Excise

Hearing of appeals ex parte - Held that - Rule 20 of the Rules does not expressly states that an order passed in an appeal, which is heard and disposed of exparte on merits cannot be set aside does not mean that the Tribunal has no power to set aside an ex-parte order. Rule 41 of the Rules gives wide power to the Tribunal to make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. In the light of the aforesaid provision, we direct the appellant to file an appropriate application for recall of the order. If such an application is filed, the Tribunal will consider and decide the same after hearing all parties concerned. The appeal is dismissed with the aforesaid observation leaving it open to the appellant to challenge the impugned order of the Tribunal, if necessary, after the disposal of the restoration application.

Summary

Issues involved:
Appeal against Tribunal's order dismissing ex-parte, Interpretation of Rules 20 and 21 of Customs Excise And Service Tax Appellate Tribunal (Procedure) Rules, 1982, Power of Tribunal to set aside ex-parte orders, Requirement of recall application, Wide powers of Tribunal under Rule 41.

Analysis:
The High Court heard an appeal against the Tribunal's order dated 09.04.2015, which dismissed the appeal filed by the appellant ex-parte on merits. The Court examined Rules 20 and 21 of the Customs Excise And Service Tax Appellate Tribunal (Procedure) Rules, 1982. Rule 20 allows the Tribunal to either dismiss the appeal for default or hear and decide it on merits if the appellant does not appear on the hearing date. The proviso to Rule 20 permits setting aside the dismissal and restoring the appeal if the appellant shows sufficient cause for non-appearance. On the other hand, Rule 21 deals with hearing appeals ex-parte when the appellant appears, but the respondent does not. In this case, since the appellant did not appear, and the respondent was present, the Tribunal should have proceeded under Rule 20.

The Court emphasized that the absence of a specific provision for recall application under Rule 20 does not preclude setting aside an ex-parte order if sufficient cause is demonstrated by the appellant. Rule 41 of the Rules grants the Tribunal broad powers to make necessary orders to secure justice or prevent abuse of process. Therefore, the Tribunal has the authority to set aside an ex-parte order even if not explicitly mentioned in Rule 20. The Court directed the appellant to file an appropriate application for the recall of the order. Upon filing, the Tribunal would hear all concerned parties and decide accordingly. The appeal was dismissed, allowing the appellant to challenge the Tribunal's order after the restoration application's disposal.

In conclusion, the High Court's judgment clarified the interpretation of Rules 20 and 21 and affirmed the Tribunal's power to set aside ex-parte orders under Rule 41. The Court's decision highlighted the importance of procedural fairness and the need for parties to follow the prescribed legal procedures for seeking relief in such cases.