2018 (10) TMI 1564 - HC - Service Tax

Principles of natural justice - non prosecution by impugned Exparte order - Whether in the facts and circumstances of the case and in law, the Tribunal was correct in dismissing an appeal for non prosecution by impugned Exparte order dated 27.1.2015 as well as order dated 8.3.2013 signed on 11.3.2013 contrary to Rule 20 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 read with Section 35C of CEA, 1944? - Whether in the facts and circumstances of the case and in law, the Tribunal was justified in dismissing the appeal when issue is settled by Hon'ble Apex Court in the case of Balaji Steel Rerolling Mills Vs. Commissioner of C. Ex. Customs 2014 (11) TMI 531 - SUPREME COURT ? - Held that - Even if the party / parties do not appear at the time of the hearing, Rule 20 of the Rules requires the Tribunal to decide the issue on merits. This is not the requirement while dismissing an appeal for noncompliance with the Rule 11(2) of the CESTAT (Procedural) Rules. Thus, we see no reason to entertain the appeal on the aforesaid two questions of law as proposed by the appellant. Whether in the facts and circumstances of the case and in law, the Tribunal was correct who did not consider the genuine cause for non prosecution and dismissed an appeal by order dated 27.1.2015? - Held that - The question as proposed in respect of the order dated 27th January, 2015 i.e. rejecting the restoration application, thus outside the scope of the appeal. Thus, not entertained. Appeal is dismissed.

Summary

Issues:
1. Appeal challenging orders of Customs, Excise and Service Tax Appellate Tribunal (Tribunal).
2. Substantial questions of law raised by the appellant.
3. Dismissal of appeal by Tribunal for non-appearance and non-compliance.
4. Application for restoration of dismissed appeal.
5. Maintainability of appeal against order rejecting restoration application.
6. Concern with the order dismissing the appeal for non-removal of office objections.
7. Interpretation of Rules regarding dismissal of appeal.
8. Advocate's non-appearance and its impact on the appeal.
9. Evidence of Advocate's non-appearance and its relevance.
10. Dismissal of the appeal.

Analysis:

1. The appeal under Section 83 of the Finance Act, 1994 challenges the Tribunal's orders dated 8th March, 2013 and 27th January, 2015. The appellant raises substantial questions of law regarding the dismissal of the appeal for non-prosecution and non-compliance with rules.

2. The Tribunal dismissed the appeal on 8th March, 2013, as no one appeared in support of the appeal despite multiple notices and directions to file a condonation of delay application. The dismissal was based on Rule 11 of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982.

3. Subsequently, the appellant filed an application for restoration of the appeal, which was dismissed on 27th January, 2015, due to lack of appearance and delayed filing without a condonation of delay application. The Tribunal found the application to be untimely and lacking proper justification.

4. The appeal against the order rejecting the restoration application was deemed non-maintainable under Section 35G of the Act, as it was an application order, not an appeal order. The remedy against such an order was not an appeal but a different legal recourse as per established precedents.

5. The focus of the appeal was on the order dated 8th March, 2013, concerning non-compliance with office objections and non-appearance despite notices sent to the appellant. The Tribunal's decision was challenged based on the appellant's argument that the appeal should have been considered on its merits.

6. The appellant contended that the dismissal of the appeal without considering the issue on merits was improper, citing relevant court decisions related to Rule 20 of the Rules. The Tribunal's obligation to decide on merits even in the absence of the parties during the hearing was emphasized.

7. Regarding the appellant's argument that the advocate's non-appearance should not penalize the appellant, the Supreme Court's decision in Rafiq and Anr. Vs. Munshilal and Anr. was cited. However, the lack of evidence proving the advocate's non-appearance on the hearing date weakened this argument.

8. The evidence presented, a bill from the Chartered Accountant, did not conclusively prove the advocate's briefing and subsequent non-appearance. The bill indicated charges for specific applications but lacked any mention of preparing the appeal or appearing for the hearing, undermining the appellant's claim.

9. Ultimately, the Court found no substantial legal questions arising from the advocate's alleged non-appearance and the related bill evidence. As a result, the appeal was dismissed based on the lack of merit in the arguments presented.