2010 (2) TMI 569 - AT - Central Excise

Recall of order Appellant absent on the date of hearing Unable to justify the absence Held that - no justification find in the applications for recalling our order and restoring the appeals as claimed by the applicants and in any case such a course of action in the facts and circumstances of the case would amount to exercise of power of review which is not available to the Tribunal.

Summary

Issues involved:
Restoration of appeals dismissed ex parte; Consideration of submissions made by appellants in appeal memoranda; Applicability of CBEC Circular No. 325/41/97-Ex; Opportunity for cross-examination; Maintenance of log sheets; Reliance on witness statements; Violation of principles of natural justice; Invoking extended period of limitation; Imposition of penalty in absence of mens rea; Review of tribunal order; Justifiability of recall of order; Exercise of power of review by the Tribunal.

Analysis:
The judgment pertains to two applications seeking restoration of appeals dismissed ex parte. The primary grounds for restoration included claims of decisions being ex parte and non-consideration of various submissions made by the appellants in their appeal memoranda. The submissions encompassed arguments regarding spare crucibles, power load capacity, production enhancement, log sheets, cross-examination, reliance on witness statements, violation of natural justice principles, limitation period, penalty imposition, and more (Para 3.1-3.2).

The appellants argued that the Tribunal erred in not considering their submissions, citing instances such as spare crucibles, power load capacity, and production enhancement. The Tribunal, however, found that these submissions were indeed considered and addressed in the original order, providing detailed findings on core issues such as the use of higher capacity crucibles and annual production capacity determination (Para 5.3-5.4).

Moreover, the judgment highlighted that the appellants were offered opportunities for cross-examination, and various submissions were taken into account even if not explicitly mentioned in the order. The Tribunal concluded that no significant grounds were presented to justify the recall of the ex parte order (Para 5.5-5.6).

The judgment also discussed the reliance on legal precedents, including decisions from the Larger Bench of the Tribunal and High Courts, to support the appellants' contentions for restoration. However, the Tribunal found no valid justifications for recalling the order, emphasizing the absence of sufficient cause for the appellants' non-appearance during the hearing (Para 7-10).

Ultimately, the Tribunal dismissed the applications for restoration of the appeals, stating that such action would amount to a review, which is not within the Tribunal's power. The decision was based on the lack of justifiable cause for the appellants' absence during the hearing and the absence of valid grounds for their recall (Para 10-11).