2018 (12) TMI 1095 - AT - Central Excise

Rectification of mistake - restoration of appeal - applicant asserts that they had not received the notice and therefore, they could not appear for the hearing - Held that - The Revenue has not disputed the assertion of the applicant that they had not received the notice - In these circumstances, the order is recalled and the appeal restored to its original number, to be listed in due course - Restoration of application allowed.

Summary

Issues: Rectification of mistake and restoration of appeal due to non-receipt of notice leading to ex parte order

Rectification of Mistake:
The applicant filed an application for rectification of mistake and restoration of appeal, claiming they did not receive the notice and thus could not appear for the hearing, resulting in an order passed without their input. The advocate for the applicant did not press for the application for rectification of mistake (ROM), leading to its dismissal.

Restoration of Appeal:
The counsel for the appellant cited the decision of the Hon'ble Apex Court in the case of JK Synthetics, emphasizing the need to set aside ex parte orders if the respondent was unable to appear for no fault of their own. On the other hand, the ld. AR argued against the restoration of appeal, referring to a Tribunal decision in the case of Chamunda Engineering Works Vs. CCE, Ahmedabad. The AR pointed out that the decision had been given on merits, suggesting no requirement for restoration of the appeal.

Analysis:
Upon reviewing the submissions, the Tribunal noted the observation of the Hon'ble Apex Court in the case of JK Synthetics regarding setting aside ex parte orders when the respondent was unable to appear for sufficient cause. The Tribunal acknowledged the applicant's claim of not receiving the notice, which was not disputed by the Revenue. In light of these circumstances, the Tribunal decided to recall the order, restore the appeal to its original number, and list it for further proceedings. The application for restoration of appeal was allowed, emphasizing the importance of ensuring justice by considering the reasons for the absence of a party when passing orders.

This judgment highlights the significance of procedural fairness and the duty of tribunals to consider genuine reasons for non-appearance before making decisions. The legal principles cited underscore the need to balance the interests of all parties involved and ensure that justice is served by rectifying mistakes caused by factors beyond the control of a party.