2020 (7) TMI 263 - AT - Service Tax

Maintainability of application for restoration of case - Bench observed that the Appellant was no longer interested in pursuing the matter and, therefore, dismissed the Appeal in default - HELD THAT - The records indicate that the order dated 22 June, 2018 was sent to the Appellant by registered post with acknowledgement due on 03 July, 2018. A copy of the letter was sent to the Authorized Representative of the Department who has also stated that he received the copy of the order/letter. There is no averment in the Application that this letter sent to the Appellant by registered post was not received by the Appellant. This apart, and as has also been stated in the Application, orders/final orders were uploaded on the website of the Tribunal. This fact has been admitted by the learned Counsel for the Appellant. Such being the position, there is no reason as to why no attempt was made either by the Appellant or the learned Counsel for the Appellant to visit the website of the Tribunal to find out the order passed on the second restoration application. There is no satisfactory explanation that has been offered to explain this enormous delay of 500 days to the satisfaction of the Tribunal. In the present case, the first Restoration Application was dismissed in default and, therefore, the observations made by the Tribunal in Parwati Automotives Pvt. Ltd. would not help the Department. The second Restoration Application has been filed for recall of the order dated 22 June, 2018 and, therefore, would be maintainable as it is not for recall of the order dated 19 April, 2018. The facts stated above leave no manner of doubt that the Appellant had adopted a very callous approach and had not pursued the Appeal or the Restoration Application with any sense of responsibility - Application dismissed.

Issues Involved:
1. Dismissal of Appeal for Default
2. Application for Recall of Dismissal Order
3. Second Application for Recall of Dismissal Order
4. Maintainability and Timeliness of Restoration Applications

Issue-Wise Detailed Analysis:

1. Dismissal of Appeal for Default:
The Appellant's appeal, filed on 11 November 2011, was dismissed for default on 19 April 2018. The Tribunal noted that the hearing had been adjourned multiple times due to requests from the Appellant's counsel. When the matter was listed for hearing on 19 April 2018, neither the Appellant nor their counsel appeared, nor was any adjournment application filed. Consequently, the Tribunal dismissed the appeal, observing that the Appellant was no longer interested in pursuing the matter.

2. Application for Recall of Dismissal Order:
The Appellant filed an application on 04 June 2018 to recall the dismissal order dated 19 April 2018. The application explained that the Appellant had changed counsel a day before the hearing, and the new counsel did not have the necessary authorization to appear. The Tribunal rejected this application on 22 June 2018 due to non-appearance of the Appellant or their counsel.

3. Second Application for Recall of Dismissal Order:
On 23 December 2019, the Appellant filed another application to recall the order dated 22 June 2018 and restore the appeal. The application cited reasons such as ignorance of the counsel regarding the status of the restoration application and the introduction of the Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019, which prompted the Appellant to check the status of their application. The Appellant claimed that the counsel was unaware of the hearing date due to the discontinuation of physical notices by the Tribunal and only learned about the dismissal upon checking the Tribunal's website.

4. Maintainability and Timeliness of Restoration Applications:
The Tribunal examined whether the reasons provided by the Appellant justified the delay and non-appearance on the specified dates. It was noted that the Registry had sent notices by registered post regarding the hearing dates, which the Appellant claimed not to have received. The Tribunal found the explanations unsatisfactory, highlighting the Appellant's lack of diligence in pursuing the appeal and restoration applications. The Tribunal also considered the precedent set by the Mumbai High Court in Kirtikumar J. Shah, which suggested a three-month limitation period for filing restoration applications. The Tribunal acknowledged that while no specific time limit was prescribed, the delay of 500 days was not satisfactorily explained.

The Tribunal concluded that the Appellant had adopted a callous approach and failed to pursue the appeal or restoration applications responsibly. Consequently, the second restoration application was rejected.

Conclusion:
The Tribunal dismissed the second restoration application due to inadequate justification for the delay and non-appearance, emphasizing the Appellant's lack of diligence and responsibility in pursuing the appeal and subsequent applications. The Tribunal's decision underscored the importance of timely and proactive legal representation in appellate proceedings.

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