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2018 (8) TMI 1447 - AT - Central ExciseRestoration of appeal - the day when the matter was called i.e. on 21.08.2017, ld. Counsel for the appellant was dealing the matter in other Court and could not appear before the Bench - Held that - Initially the matter was listed on 18.04.2017, 06.06.2017 and 14.07.2017. On all occasions, adjournment was sought by the appellant and on 21.08.2017 when the matter was called none appeared on behalf of the applicant. Therefore, the conduct of the appellant shows that the appellant is not interested to pursue the matter on merit - also, while passing the order this Tribunal has considered the submissions on merit. The appellant relied on the decision of the Tribunal in the case of Ballarpur Industries Ltd. 2018 (5) TMI 384 - CESTAT MUMBAI . In the said case, this Tribunal has not passed the order on merit, therefore, the Tribunal remanded the matter. The facts of that case are different from the facts of the present case. The application for restoration of appeal dismissed.
Issues: Application for restoration of appeal due to non-appearance of appellant's counsel, consideration of appellant's conduct in pursuing the matter on merit, reliance on a previous case for recalling the order, dismissal of the application for restoration of appeal.
In this judgment by the Appellate Tribunal CESTAT NEW DELHI, the Member (Judicial) Ashok Jindal addressed an application for restoration of appeal filed by the appellant. The application was based on the ground that the appellant's counsel was engaged in another court on the day the matter was called, leading to non-appearance before the Bench on 21.08.2017. The appellant sought to recall the order dated 21.08.2017, citing a decision in Ballarpur Industries Ltd. vs. CCE, Nagpur (2018 (5) TMI 384-CESTAT Mumbai) where it was held that if the appellant's version is not heard by the Tribunal, the order may be recalled. Upon hearing the appellant's counsel and examining the record, it was noted that the matter had been adjourned multiple times at the appellant's request on previous dates. On 21.08.2017, when the matter was called, no one appeared on behalf of the appellant. The Tribunal considered this conduct as indicative of the appellant's lack of interest in pursuing the matter on merit. Additionally, it was highlighted that the Tribunal had already considered the submissions on merit while passing the order. Consequently, the Member found no merit in the appellant's submission and decided to dismiss the application for restoration of appeal. The appellant's counsel relied on the decision in the case of Ballarpur Industries Ltd. to support the application for restoration. However, it was clarified that in the cited case, the Tribunal had not passed the order on merit, leading to a remand of the matter. The Member emphasized that the facts of the Ballarpur Industries Ltd. case differed from those of the present case. Based on the observations made, the application for restoration of appeal was ultimately dismissed by the Tribunal. In conclusion, the judgment highlighted the importance of the appellant's active pursuit of the matter on merit and the Tribunal's consideration of submissions in making decisions. The dismissal of the application for restoration of appeal was based on the appellant's conduct and the distinctions drawn from a previous case relied upon by the appellant's counsel.
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