2024 (3) TMI 491 - AT - Central Excise

Maintainability of appeal - non-prosecution of the case - when the matter was called neither anybody appeared nor is there any adjournment request - HELD THAT - The appellant counsel have received the notice for hearing. However he has not shown any interest in pursuing this matter. From the facts given, it is observed that the matter is pending only for the reason that appellant/counsel on record is not responding to the notices for hearing issued making it evident that they are not interested in prosecuting this matter any further. Having allowed a sufficient number of opportunities to the appellant/appellant s counsel for hearing, there are no reason to further adjourn this matter. Interestingly in this case this appeal filed by the appellant was earlier also dismissed for non prosecution. Subsequently it was restored by the bench on application made by the appellant. However it is observed that that appellant chose not appear even at the time of hearing of the miscellaneous application also appellant was not represented and restoration was done in absentia. Even after restoration appellant has not shown any interest towards prosecuting this appeal. Even in response to the hearing notice no communication has been made by the appellant/ appellant s counsel. In case of Ishwarlal Mali Rathod 2021 (9) TMI 1301 - SUPREME COURT condemning the practice of adjournments sought mechanically and allowed by the courts/ Tribunal s Hon ble Supreme Court has observed considering the fact that in the present case ten times adjournments were given between 2015 to 2019 and twice the orders were passed granting time for cross examination as a last chance and that too at one point of time even a cost was also imposed and even thereafter also when lastly the High Court passed an order with extending the time it was specifically mentioned that no further time shall be extended and/or granted still the petitioner defendant never availed of the liberty and the grace shown. In fact it can be said that the petitioner defendant misused the liberty and the grace shown by the court. It is reported that as such now even the main suit has been disposed of. Appeal is accordingly dismissed for non prosecution in terms of Rule 20 of the CESTAT Procedure Rules, 1982.

Summary

Issues Involved:
1. Non-appearance of the appellant.
2. Adjournment requests and their misuse.
3. Legal provisions regarding adjournments.

Summary:

Issue 1: Non-appearance of the appellant
The appellant was absent on multiple hearing dates, including 17.08.2023, 22.09.2023, and the current date. Despite notices being issued by post and email, the appellant and their counsel did not appear or request further adjournments. The Tribunal observed that the matter remained pending due to the appellant's lack of response, indicating disinterest in prosecuting the matter further.

Issue 2: Adjournment requests and their misuse
The Tribunal noted that the appeal had previously been dismissed for non-prosecution and was restored upon the appellant's application, even though the appellant did not appear at the hearing of the miscellaneous application. The Tribunal cited the Supreme Court's condemnation of the misuse of adjournments in the case of *Ishwarlal Mali Rathod*, emphasizing that repeated adjournments are an insult to justice and the concept of speedy disposal of cases.

Issue 3: Legal provisions regarding adjournments
Section 35C (1A) of the Central Excise Act, 1944, and Rule 20 of the CESTAT Procedure Rules, 1982, were referenced. Section 35C (1A) allows adjournments for sufficient cause but limits them to three times during the hearing of an appeal. Rule 20 permits the Tribunal to dismiss an appeal for default or decide it on merits if the appellant does not appear. The Tribunal highlighted that repeated adjournments undermine the justice delivery system, as observed in various Supreme Court judgments, including *Shiv Cotex v. Tirgun Auto Plast (P) Ltd.*, *Babu Singh v. State of U.P.*, and *Noor Mohammed v. Jethanand and Anr.*

Conclusion:
The appeal was dismissed for non-prosecution in terms of Rule 20 of the CESTAT Procedure Rules, 1982. The Tribunal stressed the importance of timely justice and discouraged the routine granting of adjournments to maintain faith in the justice delivery system.