2016 (11) TMI 1228 - HC - Central Excise

Principles of natural justice - recall of decision - Held that - We find that to render substantial justice and since this is a case of total non-application of mind, the Petition deserves to succeed. The initial order dated 23rd August, 2011 allowing the appeals of the Revenue ex-parte deserves to be quashed and set aside. It is accordingly quashed and set aside. The Appeals of the Revenue are restored to the file of the Tribunal for a decision afresh on merits and in accordance with the law. Mr. Shah, on taking instructions states that the notice of hearing of the Appeals served on the present Petitioners advocate at Mumbai would be accepted without insistence on a personal service on the Petitioner if that notice indicates date of hearing of the Appeals by the Tribunal, the Petitioner will make all arrangements for their appearance either through their officials or legal representative / advocate - petition allowed - decided in favor of petitioner.

Summary

Issues:
- Lack of opportunity of hearing granted by the Tribunal to the Petitioner.
- Allegation of non-receipt of notice of hearing by the Petitioner.
- Confusion by the Tribunal between rectification applications and recall of ex-parte order.
- Belated filing of Writ Petition and blame on Petitioner for non-appearance.
- Quashing and setting aside of the initial ex-parte order dated 23rd August, 2011.
- Restoration of Appeals of the Revenue to the Tribunal for a fresh decision.

Issue 1: Lack of Opportunity of Hearing
The Petitioner, the original Respondent to the Appeal before the Tribunal, complained that no opportunity of hearing was granted to them. The Petitioner argued that despite the Tribunal being aware of their absence, it proceeded as if the Petitioner was notified but did not appear. The Petitioner contended that they were not served any notice of the hearing and supported this claim with an affidavit stating that the notice was not received due to changes in the company structure and factory location. The Court acknowledged the lack of opportunity granted and deemed it necessary to quash the ex-parte order and restore the Appeals for a fresh decision.

Issue 2: Allegation of Non-Receipt of Notice
The Petitioner raised a specific point that no notice of the hearing was ever served on them, leading to the ex-parte order. The Petitioner highlighted the changes in the company structure and factory location, which resulted in the non-receipt of the notice. The Court examined the affidavit supporting this claim and found merit in the argument, ultimately deciding to set aside the initial order and allow the Appeals to be reconsidered based on merits and in accordance with the law.

Issue 3: Confusion by the Tribunal
The Tribunal, in a state of confusion, treated the Petitioner's application for recall as a rectification request by the Revenue. This confusion led to the Tribunal not addressing the essential prayer of the Petitioner for restoration. The Court noted this confusion and emphasized the need to differentiate between rectification applications and recall requests, ultimately leading to the quashing of the initial ex-parte order and the restoration of the Appeals for a fresh decision.

Issue 4: Belated Filing of Writ Petition
The Respondent argued that the Writ Petition was filed belatedly and blamed the Petitioner for not appearing despite the notice of hearing. However, the Court disagreed with this argument, stating that substantial justice needed to be rendered due to the total non-application of mind in the case. The Court allowed the Writ Petition, quashed the initial order, and set aside the subsequent rectification order for a fresh decision on the Appeals.

Issue 5: Quashing and Setting Aside of Ex-Parte Order
Due to the lack of opportunity granted to the Petitioner and the non-receipt of the notice of hearing, the Court decided to quash and set aside the initial ex-parte order dated 23rd August, 2011. This decision was made to ensure that substantial justice is served and that the Appeals are reconsidered on their merits and in accordance with the law.

Issue 6: Restoration of Appeals
In light of the confusion by the Tribunal, the Court ordered the restoration of the Appeals of the Revenue to the Tribunal for a fresh decision. The Court clarified that the decision to set aside the initial order meant that nothing survived in the subsequent proceedings for rectification, and the order in that regard was also set aside. The Court emphasized that the restoration of the Appeals was necessary to ensure a fair and just decision based on the merits of the case.