2016 (9) TMI 271 - AT - Customs

Restoration of appeal non-appearance of both parties at the time of passing of order - Valuation import of second hand machinery upward revision of value accepted by assesse Held that - Tribunal has the powers to recall an ex-parte dismissal of appeal on merits and infact such orders should be recalled when there was sufficient cause for absence of a party. The Hon ble Court further observed that ends of justice requires when the party is unable to appear for any fault of his own, the ex-parte order against him should be set aside. Their exists sufficient cause for the advocate not to cause appearance before the Tribunal at the time when appeals were taken up for disposal. The late arrival of the advocate on account of delayed train is not a fault attributable to him - restoration of appeal allowed.

Summary

Issues involved:
1. Recalling of the final order rejecting three appeals filed by the assessee on merits.
2. Absence of the appellant's representative during the passing of the final order.
3. Contentions regarding the ex-parte nature of the order and the need for restoration.
4. Consideration of sufficient cause for the advocate's late appearance before the Tribunal.

Issue 1: Recalling of the final order rejecting three appeals:
The appellate tribunal received miscellaneous applications for recalling the final order dated 18.11.15, where three appeals by the assessee were rejected on merits. It was noted that nobody appeared at the time of passing the final order, and the appellant's contentions were not considered. The Tribunal observed discrepancies in the order, indicating that the valuation submitted by the appellant was not adequately addressed. The learned advocate contended that the order was passed ex-parte due to his delayed arrival caused by a late train.

Issue 2: Absence of the appellant's representative during the final order:
The order recorded that nobody appeared for the assessee, despite references to learned counsel's contentions. The advocate for the appellant submitted an affidavit explaining the delayed arrival due to a late train from Chandigarh to Delhi. The order noted the absence of the appellant's representative during the final decision, leading to the request for restoration of the appeals.

Issue 3: Ex-parte nature of the order and the need for restoration:
The Revenue representative argued that even though the preamble indicated no appearance by the assessee's representative, the body of the order referenced learned counsel's contentions, implying his presence. However, the appellant's contention was that the order was ex-parte and should be recalled based on the Supreme Court's ruling in J K Synthetics Ltd. vs. CC [1996 (86) ELT472 (SC)], which allows for the recall of ex-parte orders when there is a sufficient cause for the absence of a party.

Issue 4: Consideration of sufficient cause for the advocate's late appearance:
The Tribunal found that the advocate's delayed arrival was due to circumstances beyond his control, specifically a delayed train. Citing the Supreme Court's ruling, the Tribunal acknowledged the advocate's valid reason for not appearing on time and decided to recall the final order, restoring the appeals to their original status for final disposal on a specified date. The application for restoration was allowed, emphasizing the importance of ensuring justice when a party is unable to appear due to reasons beyond their control.