2019 (2) TMI 1425 - AT - Central Excise

Rectification of mistake - Restoration of appeal - order of Tribunal passed ex-parte - applicant seeks to recall the order on the ground that the applicant/ advocate could not be present at the time of hearing - Held that - Though the hearing notice was sent but that was received by the applicant almost on the same day of hearing. Therefore, non-prosecution on the part of the applicant is not intentional - Order is recalled and appeal restored to its original number - application allowed.

Summary

Issues: Rectification of mistake in the ex-parte order due to late receipt of hearing notice.

Analysis:
1. The applicant filed an application seeking rectification of a mistake in the order passed by the Tribunal on 27.07.2018, which was done ex-parte as the applicant/advocate could not attend the hearing due to the late receipt of the hearing notice.

2. The applicant's senior advocate argued that the hearing notice for the hearing scheduled on 18.07.2018 was received on the same day of the hearing, leaving insufficient time for the applicant to appear. Citing the case of J.K. Synthetics Limited vs. Collector of Central Excise, it was contended that the order should be recalled and re-heard due to the unintentional non-prosecution by the applicant.

3. The Tribunal, after considering the submissions, acknowledged that the late receipt of the notice was beyond the control of the applicant, indicating that the non-prosecution was not intentional. In light of the precedent set by the Hon'ble Supreme Court in the case of J.K. Synthetics Limited, the Tribunal decided to recall the order dated 27.07.2018 and restore the appeal to its original status for regular hearing in due course.

4. The Tribunal's decision to recall the order was based on the principle that the applicant's inability to attend the hearing was due to the delayed receipt of the notice, which was a valid ground for reconsideration as per legal precedents. By rectifying the mistake and allowing the appeal to be re-heard, the Tribunal ensured that the applicant's right to a fair hearing was upheld, demonstrating adherence to the principles of natural justice and procedural fairness.

Conclusion:
The Tribunal's decision to recall the ex-parte order due to the late receipt of the hearing notice reflects a commitment to fairness and procedural justice, aligning with established legal principles and precedents. The rectification of the mistake and the restoration of the appeal for regular hearing uphold the applicant's right to a fair opportunity to present their case, emphasizing the importance of procedural regularity in legal proceedings.