2016 (8) TMI 498 - AT - Service Tax

Recall of the order - order passed without hearing the appellant - hearing notice not served - failure to attend hearing - repeated default in complying with earlier notices also as notices did not reach the appellant address - Held that - The principles of natural justice require that a person should be given an opportunity of being heard. When the person is not found at the address given in the appeal papers, not once, not twice, but repeatedly, it cannot cry foul and claim violation of principles of natural justice. The appellant cannot create a situation where it becomes impossible to contact him on the given address in spite of repeated attempts and then turn up to claim violation of principles of natural justice. One cannot kill both of one s parents and then claim to be an orphan. Thus the appellant s contention that it was not given an opportunity of being heard is totally untenable. We find that CESTAT vide order dated 4.12.2015 had clearly stated that the appeal stood dismissed in terms of the default clause in the order dated 21.9.2015 - no justifiable reason to interfere with the order of CESTAT - application rejected - appeal dismissed.

Summary

Issues:
1. Recall of order due to non-service of hearing notice.
2. Compliance with principles of natural justice in issuing notices.
3. Appellant's claim of violation of principles of natural justice.

Analysis:
1. The case involved a misc. application seeking the recall of an order dated 21.9.2015 in ST Appeal No. 1661/2011 on the grounds that the order was passed without hearing the appellant as the hearing notice was not served. The appellant argued that the notice was returned unserved, leading to non-attendance at the hearing. The High Court had previously directed the appellant to file an application seeking the setting aside of the previous order due to lack of notice, which resulted in the Tribunal recalling its order and fixing a new hearing date.

2. The Tribunal issued multiple notices to the appellant, but they were returned unserved with remarks stating that the appellant was not available at the given address. Despite repeated attempts and multiple notices being sent, the appellant failed to be reached. The Tribunal emphasized the importance of natural justice, highlighting that the appellant cannot claim a lack of opportunity to be heard when they consistently could not be contacted at the provided address. The Tribunal found that the appellant's contention of not being given a chance to be heard was baseless, especially considering the repeated unsuccessful attempts to serve notices.

3. The Tribunal ultimately dismissed the misc. application, stating that there was no justifiable reason to interfere with the previous orders. The appellant's argument of not being given an opportunity to be heard was deemed untenable due to the repeated failures to serve notices. The Tribunal upheld the decision to dismiss the appeal based on the default clause in the order dated 21.9.2015. The judgment emphasized the importance of compliance with procedural rules and the principles of natural justice in legal proceedings, ultimately leading to the dismissal of the appellant's claim.