2007 (7) TMI 300 - AT - Service Tax

Restoration of an appeal / withdrawal of an appeal - . After a perusal of the so-called affidavit we note that the point urged by the deponent is that he has been denied the opportunity of not pressing the application for withdrawal of appeals. We shall treat this averment as a part of the text of the applications and we observe that in any application opportunity is given to the applicant to press its grounds rather than to withdraw it and that where the application is allowed it is not necessary to give personal hearing to the applicant. Hence no denial of natural justice is involved in the dismissal of the appeals as above. Further the document does not contain any material indicating sanction of the Board of Directors of the company for reviving the appeals. To our mind any functionary of the company cannot at his whims and fancies file and withdraw appeals on behalf of the company. In the circumstances we consider that the present applications also amount to abuse of the process of this Tribunal. Both the applications are dismissed under Rule 41 of the CESTAT

Summary

Issues:
1. Appeal withdrawal and restoration process.
2. Abuse of process of the Tribunal.
3. Denial of natural justice.

Analysis:
1. The appeals were initially filed by the Senior Manager-Works of the company, who later became the Deputy General Manager-Works. He filed applications for the withdrawal of the appeals, which were allowed, and the appeals were dismissed. Subsequently, another functionary of the company filed applications for restoration of the appeals, which were dismissed under Rule 41 of the CESTAT (Procedure) Rules due to abuse of the process of the Tribunal.

2. The Deputy General Manager-Works of the company made further applications for restoration of the appeals. The Tribunal noted that the 'affidavit' accompanying the applications was not verified or attested. The Tribunal observed that the applications lacked material indicating the sanction of the Board of Directors for reviving the appeals. It was highlighted that any functionary of the company cannot arbitrarily file and withdraw appeals on behalf of the company, deeming such actions as an abuse of the Tribunal's process. Consequently, the applications for restoration were also dismissed under Rule 41 of the CESTAT (Procedure) Rules.

3. The 'deponent' in the affidavit claimed denial of the opportunity to not press the application for withdrawal of appeals. The Tribunal clarified that in any application, the opportunity is given to the applicant to press its grounds rather than to withdraw it. It was emphasized that where the application is allowed, there is no requirement for a personal hearing to the applicant. The Tribunal concluded that no denial of natural justice occurred in the dismissal of the appeals. The applications were dismissed as they were considered an abuse of the Tribunal's process, as they lacked the necessary authorization and were filed without proper authority.