2013 (9) TMI 717 - AT - Central Excise

Restoration of appeals - Notice for hearing not received - Held that - As per the appeal memorandum, column No. 6 provides for address for communication of order/notice of the appellants at the given address, wherein the appellants have given two addresses for service of notice. If notice could not be served at one address, then the notice may be served on the second address. On perusal of record, it reveals that there was no service of notice on the second address. Therefore, I find that in these cases applicants have not been served any notice of hearing - Decided in favor of assessee.

Summary

Issues:
1. Restoration of appeals due to non-receipt of notice for hearing.
2. Dismissal of appeals for failure to appear before the Tribunal.

Analysis:
1. The applicants filed an application for restoration of appeals, stating that they did not receive any notice for the hearing of their stay applications or the final hearing of their case. The applicants had provided two addresses for communication in their appeal form, but only the notice was sent to the first address. The applicants were unrepresented in the proceedings as they did not receive any notice at the second address. The applicants learned about the dismissal of their appeal only when recovery proceedings were initiated. The Tribunal found that the applicants were not served any notice of hearing and that they had filed affidavits in support of their contentions. Consequently, the Tribunal recalled the final order and stay orders, directing the restoration of the appeals and listing the stay applications afresh.

2. The Departmental Representative argued that the notice was served on the address provided by the applicants, and since no vakalatnama of the advocate was filed, it was not necessary to serve the notice on the advocate's address. The notice sent to the first address was returned unserved as the factory was closed. The Departmental Representative contended that the service of notice was complete as per the Central Excise Act, and since the applicants failed to appear before the Tribunal, the applications for restoration of appeals should be dismissed. However, the Tribunal noted that the notice was not served on the second address provided by the applicants. The Tribunal found the argument regarding the absence of a vakalatnama not convincing and emphasized that the applicants had not been served any notice of hearing. Therefore, the Tribunal allowed the applications for restoration of appeals, recalling the orders and directing the listing of stay applications anew.

In conclusion, the Tribunal allowed the applications for restoration of appeals, emphasizing the importance of serving notices to the correct addresses provided by the appellants. The Tribunal found that the applicants were not given the opportunity to defend their case due to non-receipt of notices, leading to the recall of the orders and the restoration of the appeals for fresh consideration.