1989 (10) TMI 178 - AT - Customs

Summary

Issues:
1. Setting aside an ex parte order in a ROM application.
2. Applicability of judgments from Calcutta and Kerala High Courts.
3. Power of the Tribunal to set aside an ex parte order.
4. Distinction between an appeal and an application in ex parte orders.
5. Consideration of a ROM application after an ex parte order.

Analysis:

1. The applicant's ROM application was dismissed by the Tribunal in an ex parte order due to non-appearance. The applicant filed a Misc. Application seeking to set aside the ex parte order and be granted an opportunity to present the case before the Tribunal.

2. The applicant's advocate argued that based on judgments from Calcutta and Kerala High Courts, the Tribunal has the power to recall an ex parte order and rehear the appeal if a party was unable to avail the opportunity properly. However, the Tribunal noted that the judgments cited were related to ex parte decisions in appeals, not applications for rectification of mistakes like the present case.

3. The Tribunal examined the records and found that the ROM application was dismissed after giving the applicant a personal hearing, but the applicant could not avail the opportunity due to a car accident. The Tribunal cited a Supreme Court judgment stating that the ROM application effectively acted as a review petition, and the Customs Act does not grant the Tribunal the power to review its orders.

4. One member of the Tribunal disagreed with the view that the judgments from the High Courts were not applicable and emphasized that an ex parte order, whether in an appeal or an application, can be set aside by the Tribunal to provide a reasonable opportunity for the party to be heard.

5. Ultimately, the Tribunal, by majority decision, allowed the Misc. Application to set aside the ex parte order, recalling the previous order and directing the ROM application to be listed for hearing on merits. The decision was made to comply with the principles of natural justice and provide the appellant with an opportunity to present their case.

This detailed analysis covers the issues raised in the judgment, including the arguments presented, the legal principles applied, and the final decision reached by the Tribunal.