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2017 (5) TMI 1139 - HC - Central ExciseService of notice - the sole ground on which the Tribunal has remanded the matter to the adjudicating authority to decide afresh on the grounds of appeal raised by the Revenue is that the respondents were not appearing before the Bench and were not contesting the grounds of appeal of the Revenue on merits and that it was difficult to proceed in the matter - Held that - the petitioner herein had invoked the powers of the Tribunal under rule 41 of the rules and not under section 35C(2) of the Act. Insofar as the order dated 30th November, 2015 is concerned, the Tribunal has not entered into any discussion on the merits of the appeal but has merely remanded the matter on the ground that the respondents (the petitioner herein and others) had not contested the appeal of the Revenue on merits and it was difficult to proceed in the matter. The Tribunal was not justified in not entertaining the application made by the petitioner for recalling its earlier order dated 30th November, 2015 and restoring the appeal - petition allowed - decided in favor of petitioner.
Issues Involved:
1. Challenge to the orders passed by the Customs, Excise and Service Tax Appellate Tribunal. 2. Tribunal's decision to remand the matter based on non-appearance and non-contestation by the petitioner. 3. Rejection of the petitioner's restoration application by the Tribunal. 4. Application of Supreme Court precedents in the context of the Tribunal's powers under Rule 41 and Section 35C(2). Issue-wise Detailed Analysis: 1. Challenge to the Orders Passed by the Tribunal: The petitioner challenged the orders dated 30th November 2015 and 1st April 2016 passed by the Customs, Excise and Service Tax Appellate Tribunal. The petitioner contended that the Tribunal's decision to remand the matter to the adjudicating authority was based on an incorrect finding that the petitioner was not appearing before the Bench and not contesting the grounds of appeal on merits. 2. Tribunal's Decision to Remand the Matter: The Tribunal remanded the matter to the adjudicating authority on the ground that the respondents, including the petitioner, were not appearing and contesting the grounds of appeal on merits. The petitioner argued that this finding was factually incorrect as their advocate had appeared on previous occasions, filed cross-objections, and submitted relevant case laws. The Tribunal's order did not reflect any consideration of the merits of the case or the submissions made by the petitioner. 3. Rejection of the Petitioner's Restoration Application: The petitioner filed an application for restoration of the appeal, citing the Supreme Court's decision in J.K. Synthetics Ltd. v. Collector of Central Excise, which allows for setting aside an ex parte order if the respondent was unable to appear for no fault of their own. The Tribunal rejected this application, stating that recalling the order would amount to a review, which is not permissible. The Tribunal relied on the Supreme Court's decision in RDC Concrete (India) Pvt. Ltd., which restricts the Tribunal from reappreciating evidence under Section 35C(2). 4. Application of Supreme Court Precedents: The petitioner invoked Rule 41 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982, which allows the Tribunal to make orders necessary to secure the ends of justice. The Supreme Court in J.K. Synthetics Ltd. held that the Tribunal has the power to set aside an ex parte order if the respondent had sufficient cause for not appearing. The High Court found that the Tribunal's rejection of the restoration application was based on an incorrect finding that the Tribunal had decided the appeal on merits. The High Court concluded that the Tribunal was not justified in refusing to entertain the petitioner's application for recalling the order and restoring the appeal. Conclusion: The High Court quashed and set aside the impugned orders dated 1st April 2016 and 30th November 2015 to the extent they related to Appeal No.E/841/2007. The appeal was restored to the file of the Tribunal, and the rule was made absolute with no order as to costs.
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