2018 (12) TMI 97 - HC - Central Excise

Admission of appeals u/s 35-G of the Central Excise Act - Court could have proceeded to dismiss the appeals for non-prosecution on account of absence of the counsel for the parties - Held that - On a reading of Order 41 Rule 19 of the Code of Civil Procedure, it is found that re-admission of an appeal in terms of Order 41 Rule 19 CPC is possible only in a case where the dismissal is one in default simpliciter. However, once the appeal is decided on merits, perhaps the proper remedy was either to seek review of the order or challenge the same before the Apex Court. The reason for non appearance has been sufficiently explained - in view of settled law, the applications are allowed and the appeals are directed to be re-admitted for purpose of hearing - application allowed.

Summary

Issues:
1. Re-admission of appeals filed under Section 35-G of the Central Excise Act.
2. Application of Order 41 Rule 19 of the Code of Civil Procedure for seeking re-admission of appeals.
3. Interpretation of Order 41 Rule 19 CPC in cases where appeals are decided on merits.
4. Application of the judgment in Navnirman Development Consultants (I) Pvt. Ltd. v. Divisional Commissioner, 2017 (8) SCC 603 for seeking re-admission of appeals.
5. Examination of the explanation for non-appearance of counsel and its sufficiency for allowing re-admission of appeals.

Analysis:
1. The applications before the High Court pertained to the re-admission of appeals filed under Section 35-G of the Central Excise Act. The appellant contended that the Court had erred in deciding the appeals on merits in the absence of counsel, contrary to the provisions of the Code of Civil Procedure under Order 41 Rule 17, which allows for dismissal for non-prosecution but not on merits.

2. The appellant argued that despite the dismissal on merits, they had the right to seek re-admission of the appeals under Order 41 Rule 19 of the Code of Civil Procedure. It was emphasized that the procedural provisions of the Code of Civil Procedure were applicable to appeal proceedings under Sub-section (G) of Section 35 of the Central Excise Act, 1944.

3. The Court examined the scope of Order 41 Rule 19 CPC and noted that re-admission of an appeal under this rule is typically allowed in cases of default simpliciter. However, once an appeal is decided on merits, the appropriate remedies would usually involve seeking a review of the order or challenging it before the Apex Court. The appellant relied on a judgment by the Apex Court in Navnirman Development Consultants case to support their argument for re-admission under Order 41 Rule 19 CPC even in cases decided on merits.

4. Citing the judgment in Navnirman Development Consultants case, the Court highlighted the importance of Order 41 Rule 19 CPC for seeking re-admission of appeals, especially when the dismissal is under Order 41 Rule 17. The Court considered the explanation provided for the non-appearance of counsel and found it sufficient, leading to the allowance of the applications for re-admission of the appeals for further hearing.

5. Based on the explanation presented for the non-appearance of counsel and the legal principles discussed, the Court allowed the applications for re-admission of the appeals and directed them to be re-admitted for the purpose of hearing, setting the next date for listing the case.

This detailed analysis of the judgment addresses the issues raised regarding the re-admission of appeals under the Central Excise Act and the application of relevant procedural rules from the Code of Civil Procedure, along with the interpretation of legal principles from the cited judgment to support the decision for re-admission.