2009 (7) TMI 941 - AT - Central Excise

Summary

Issues: Failure of advocate to appear leading to ex parte proceedings, requirement of pre-deposit under section 35F, recall of order, extension of time for deposit.

Failure of advocate to appear leading to ex parte proceedings:
The case involves a situation where the advocate representing the appellants failed to appear on the date of the hearing, resulting in the matter proceeding ex parte. The appellants claimed that they were not aware of the requirement to deposit the entire amount demanded until they received a copy of the order. The Tribunal noted that although the advocate's absence was cited as the reason for seeking a recall of the order, it was emphasized that the mere presence of the advocate would not have been sufficient, especially in cases involving pre-deposit requirements. The party itself or someone representing the party needed to provide appropriate instructions to the advocate regarding the capacity to arrange the necessary funds for deposit as mandated by the Tribunal's order.

Requirement of pre-deposit under section 35F:
The Tribunal highlighted the significance of compliance with the pre-deposit requirement under section 35F. It was clarified that in cases where there is a request for waiver of pre-deposit, it is not solely the advocate's presence that matters; the party must ensure that the advocate is briefed properly regarding the party's capacity to arrange the funds necessary for the deposit. The Tribunal emphasized that the advocate's absence alone was not a sufficient ground to recall the order, as the party or a representative should have been present to provide the required instructions.

Recall of order:
Despite the advocate's absence being cited as the reason for seeking a recall of the order, the Tribunal found that this reason alone was not sufficient. However, considering that the appellants had only become aware of the order after its issuance, the Tribunal granted an extension of time for the deposit. The appellants were given an additional six weeks to comply with the deposit requirement, with a reporting compliance date set for a later hearing.

Extension of time for deposit:
In response to the appellants' request for an extension of time to deposit the required amount, the Tribunal acknowledged the circumstances surrounding the delay in becoming aware of the order. Consequently, the Tribunal granted the appellants an extension of six weeks to fulfill the deposit requirement. The matter was scheduled to be revisited for compliance reporting on a specified date following the extended deadline.