2004 (6) TMI 158 - AT - Central Excise

Summary

Issues: Application for restoration of appeal based on delay in submission and miscarriage of justice.

In this case, the appellant filed an application for restoration of appeal, contending that their written submission, crucial for the case, was not before the Bench when the case was decided, leading to a miscarriage of justice. The appellant relied on the Supreme Court judgment in J.K. Synthetics v. CCE to support their argument that if a party is unable to appear for reasons beyond their control, the ex parte order should be set aside. The Revenue, however, argued that there was no written submission at the time of the order, and the appeal was decided based on evidence on record, showing that the capital goods in question had not suffered duty due to a fake invoice. The Revenue highlighted that there was no appearance from the appellants despite notice and no request for adjournment. The appellant also raised the issue that the main appeal should not have been decided when the case was fixed for waiver of pre-deposit.

After considering the submissions from both sides, the Member (T) noted that the appellants' written submission was received after the appeal had been dismissed. The Member found no infirmity in the impugned order and upheld the decision, stating that the facts of the J.K. Synthetics case were distinguishable as there was no sufficient cause for the appellants' absence. The appellants had not appeared when the case was initially fixed, and there was proof of notice served. The Member observed that the appeal had been decided after considering all facts and grounds presented by the appellants. Therefore, the Member concluded that there was no justification for recalling the final order and restoring the appeal, ultimately dismissing the application for restoration.