2017 (6) TMI 258 - AT - Customs

Restoration of appeal - appeal was dismissed for non prosecution - case of Revenue is that In spite of giving sufficient opportunities, appellant s prayer for adjournment one after another, the appellant and Counsel have remained absent on 03.10.2016. The same is abuse of the process of law which cannot be entertained - case of appellant is that the miscellaneous order dated 26.09.2016 adjourning the case to 03.10.2016 was not received by the Counsel and it was received by the Id. Counsel only on 05.10.2016. That for this reason the Counsel could not appear for hearing on 03.10.2016. - Held that - Instead of passing a docket order granting adjournment and posting the next date of hearing of the case, the Tribunal, in order to make it clear that the appeal will be positively taken on the next date passed the above miscellaneous orders. So the ground put forward by the appellants that they received the copy of the miscellaneous orders on 05.10.2016 and therefore could not appear on 03.10.2016 is baseless and impermissible - In the present case, especially when the Tribunal directed the appellants to get ready with the matter, there was a strong responsibility on the part of Counsel for appellants to follow up the hearing date of the appeals - there is no ground to interfere in the order passed by the Tribunal, for the reason that the appellants have been given sufficient chances for arguing their case on merits - appeal cannot be restored - decided against applicants.

Summary

Issues:
- Restoration of appeals dismissed by the Tribunal due to non-prosecution

Analysis:
The appellant filed applications for restoration of appeals dismissed by the Tribunal due to non-prosecution. The appellant's counsel argued that the appeals were dismissed on 03.10.2016 because the counsel did not receive the notice fixing the hearing date as 03.10.2016 due to a delay in receiving the miscellaneous order. The counsel relied on the judgment in the case of Balaji Rerolling Mills Ltd. Vs. CCE to argue that the appeals should have been considered on merits and not dismissed for non-prosecution. On the other hand, the respondent opposed the restoration applications, stating that the appellants had been given sufficient chances for hearing. The Tribunal had issued specific directions to the appellants to be ready for the hearing, but there was no representation on 03.10.2016, leading to the dismissal of the appeals.

The Tribunal had initially adjourned the appeals to 26.09.2016, giving the appellants time to prepare. Despite specific directions from the Tribunal, the appellants did not appear on 26.09.2016, and a request for adjournment was faxed by the counsel. The Tribunal granted another adjournment to the appellants, but on 03.10.2016, there was no appearance or request for adjournment. The appellants claimed that they did not receive the notice of the adjournment to 03.10.2016 on time, but the Tribunal found this ground baseless as the miscellaneous orders were merely for adjournment and did not contain compliance directions. The Tribunal emphasized the importance of timely appearance and preparation in tax matters, noting the complexity of the issues and the involvement of revenue implications.

The Tribunal, considering the facts and multiple adjournments given to the appellants, dismissed the restoration applications. The Tribunal highlighted the responsibility of counsels to be prepared and follow up on hearing dates, especially when directed to get ready with the matter. The judgment in the case of Balaji Re-rolling Mills Ltd. was cited, emphasizing that non-appearance and non-prosecution cannot be justified by seeking repeated adjournments. The Tribunal concluded that the appellants had sufficient opportunities to argue their case on merits and upheld the dismissal of the appeals for non-prosecution.

In conclusion, the Tribunal dismissed the restoration applications, emphasizing the importance of timely appearance and preparation in tax matters and upholding the dismissal of the appeals for non-prosecution.