2006 (6) TMI 123 - HC - Central Excise

Issues involved:
Appeal dismissed for non-prosecution; Compliance with Tribunal's directions; Restoration of appeal; Delay in filing restoration application; Service of notice; Change of address; Communication gap due to counsel's death.

Comprehensive Analysis:

Issue 1: Appeal Dismissed for Non-Prosecution
The petitioner's appeal was dismissed by the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) for non-prosecution. The Tribunal cited Rule 20 of the CEGAT (Procedure) Rules, 1982, stating that a notice regarding the hearing of the appeal was sent to the petitioner by registered post on 11th June, 1998, but no one appeared on behalf of the petitioner, leading to the dismissal of the appeal. Additionally, the Tribunal noted a delay of five years in the making of the application for restoration, which the petitioner failed to explain.

Issue 2: Compliance with Tribunal's Directions
The petitioner contended that there was full compliance with the Tribunal's directions regarding the pre-deposit of the amount and furnishing of a bank guarantee. The petitioner claimed to have deposited the required amount and provided the bank guarantee within the stipulated time. The petitioner asserted that the consultant was informed about the compliance, but due to the consultant's death in 2001, there was a communication gap. The Tribunal's decision to dismiss the appeal for non-compliance was challenged by the petitioner.

Issue 3: Restoration of Appeal
The petitioner filed an application seeking restoration of the appeal, arguing that the dismissal was unjustified as the conditions were met, and the bank guarantee was extended up to 2005. The Tribunal, however, refused to restore the appeal, citing the delay in filing the restoration application and the alleged non-appearance of the petitioner during the hearing.

Issue 4: Delay in Filing Restoration Application
The petitioner acknowledged the delay in filing the restoration application but explained that the circumstances leading to the delay indicated a bona fide impression that the appeal was pending. The petitioner extended the bank guarantee till 2005, unaware of the appeal's dismissal in 1998. The petitioner emphasized the confusion caused by the transfer of the appeal from Bombay to Delhi, the counsel's death, change of address, and non-service of notices.

Issue 5: Change of Address and Communication Gap
The petitioner informed the Tribunal about the change of address in 1996. Despite this communication, the petitioner claimed to have received no notice regarding the hearing of the appeal. The petitioner argued that the lack of notice at the changed address, coupled with the consultant's death and the absence of any acknowledgment of service, justified the appeal's restoration.

Conclusion
The High Court allowed the writ petition, setting aside the Tribunal's order and granting restoration of the appeal. The Court found merit in the petitioner's submissions, emphasizing the compliance with the Tribunal's directions and the communication gaps that led to the appeal's dismissal. The petitioner was directed to pay costs and keep the bank guarantee extended until the appeal's final disposal, with further directions scheduled before the Tribunal. Failure to comply would empower the Tribunal to take appropriate legal action.

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