2018 (2) TMI 488 - AT - Customs

Restoration of appeal - case of appellant is that the appeal should be restored being an order passed in the absence of their senior counsel on record - Held that - The appeal has not been dismissed for default or non-prosecution on the side of the learned counsel for appellant. Instead, the Tribunal has gone though the grounds stated in the appeal memorandum and also the records placed along with the same. The appeal has been disposed on merits and not on non-prosecution, therefore, there is no question of restoring the appeal in the file of the Tribunal. The remedy lies by way of an appeal. The application is devoid of merits and does not have any grounds for restoring the appeal.

Summary

Issues:
Application for restoration of appeal due to absence of senior counsel, appeal disposed on merits without the presence of senior counsel, opposition to restoration by the Authorised Representative, consideration of appeal grounds and records, mistaken mention of hearing both sides in the order, reliance on a judgment for disposal on merits, appeal age and denial of restoration.

Analysis:
The appellant filed an application seeking restoration of the appeal, which was disposed of on 08.03.2017. The appellant's senior counsel was unable to appear due to illness, and an adjournment request was sent to the Registry. However, the appeal was disposed of on merits despite the absence of the senior counsel. The appellant argued for restoration based on the absence of their senior counsel during the decision.

The Authorised Representative opposed the restoration, stating that the appeal was not dismissed for non-prosecution or default. The appeal was disposed of after considering the merits, as evidenced by the final order which reviewed the appeal memorandum, grounds of appeal, and records. The Authorised Representative argued against restoration, emphasizing the disposal on merits.

Upon hearing both sides and examining the records, the Tribunal confirmed that the appeal was indeed disposed of on merits. Despite a clerical error mentioning the hearing of both sides, the appeal was decided based on the merits presented in the appeal memorandum and records. The Tribunal addressed the entire dispute in detail and concluded that the appeal was not dismissed for non-prosecution but on its merits.

The Tribunal referenced a judgment from the Hon'ble High Court of Calcutta to support the disposal of the appeal on merits. However, the Tribunal distinguished the facts of the present case from the cited judgment, emphasizing the detailed discussion of facts and issues in the current appeal. The Tribunal reiterated that since the appeal was dismissed on merits, the appropriate remedy for the appellant is to appeal before a higher authority.

Additionally, considering the age of the appeal originating in 2005 and transferred to the current bench in 2008, the Tribunal noted that no adjournment would be granted in old cases. In light of the circumstances and the lack of merit in the application, the Tribunal concluded that the application for restoration lacked grounds and denied the restoration of the appeal.

In the final decision, the Tribunal dismissed the application for restoration, emphasizing that the appeal was disposed of on merits and the remedy for the appellant lies in appealing before a higher authority due to the age and circumstances of the case.