2012 (11) TMI 239 - AT - Central Excise

Recall of stay - appellant submits that subsequently the order was received by them on 18-9-2009 vide which the appeals itself were disposed of. Inasmuch as the hearing was concluded on the stay petition, and the appellants were not informed about the disposal of the appeals, at the time of hearing on 15/17-7-2009, they challenged the said final order Held that - Since the Final order dated 4-9-2009 is a combined order waiving pre-deposit and rejecting the appeals, and since even according to the applicants only stay petitions were heard and no orders were passed on the same - with the recall of the order dated 4-9-2009, the stay petitions are required to be disposed of first as the order waiving the requirement of pre-deposit also stands recalled

Summary

Issues:
1. Recall of stay cum final order passed by the Tribunal.
2. Violation of principles of natural justice in disposing of appeals without intimation.
3. Application of procedural review in recalling the order.
4. Consideration of non-grievance of other appellants.
5. Restoration of appeals to their original numbers.

Issue 1: Recall of stay cum final order passed by the Tribunal
The appellant filed an application to recall the stay cum final order dated 4-9-2009 passed by the Tribunal, which dismissed their appeals against the demands of duty and imposition of penalties. The appellant challenged the final order before the Punjab & Haryana High Court, which directed them to file an application for recalling the earlier orders before the Tribunal. The Tribunal, after considering the developments and lack of information regarding the final appeals' hearing, held that it may amount to a violation of natural justice to dispose of appeals without giving the appellants an opportunity to present their case. The Tribunal noted that the final appeals could be disposed of during stay hearings but emphasized the importance of informing the appellants before passing final orders.

Issue 2: Violation of principles of natural justice in disposing of appeals without intimation
The Tribunal observed that the final appeals were disposed of without any intimation to the appellant that orders were being reserved on the final appeals. This lack of communication could lead to a violation of principles of natural justice as the appellant was not given an opportunity to present their case. The Tribunal referred to previous decisions where it was held that disposal of appeals without putting either side on notice at the stay stage was not appropriate. The Tribunal highlighted that detailed arguments required for the disposal of appeals were usually not presented during stay petitions, increasing the risk of errors in the orders.

Issue 3: Application of procedural review in recalling the order
The Tribunal considered the applicability of procedural review in the present case based on the Hon'ble Supreme Court's decision in Kapra Mazdoor Ekta Union v. Birla Cotton Spg and Wvg Mills. The Court's observations on procedural reviews were deemed relevant to the case, emphasizing that procedural reviews focus on procedural illegality that invalidates the proceeding itself. The Tribunal noted that in cases where a decision is rendered without notice to the opposite party or under a mistaken impression, the power of procedural review may be invoked. It was established that the matter must be reheard in accordance with the law if the party concerned was prevented from appearing at the hearing due to sufficient cause.

Issue 4: Consideration of non-grievance of other appellants
The objection raised by the learned SDR regarding the non-grievance of other appellants who did not challenge the disposal of the appeals was not appreciated by the Tribunal. It was clarified that the non-grievance of other appellants could not act as a bar to the appellant's grievance, indicating that each appellant's case should be considered independently.

Issue 5: Restoration of appeals to their original numbers
In view of the above analysis and considerations, the Tribunal allowed the appellant's application and recalled the earlier order related to the appellants. The appeals were restored to their original numbers, emphasizing the importance of ensuring that the appellants have a fair opportunity to present their case. Additionally, the Tribunal decided to list the stay petitions for further consideration following the recall of the order dated 4-9-2009, as the order waiving the requirement of pre-deposit also stood recalled.

This detailed analysis of the judgment highlights the issues involved, the Tribunal's considerations, and the ultimate decision to recall the earlier order and restore the appeals to their original numbers.