2014 (4) TMI 261 - HC - Central Excise

Restoration of appeal - Appeal dismissed more than 16 years ago for non appearance - Assessee contends that no notice was dispatched to them - Lack of knowledge of dismissal - Held that - after such a long lapse of time, the issues cannot be reopened. Firstly, the dispatch register of the relevant time shows that communications were dispatched to the petitioners. Secondly, the Tribunal in its order dated 27.10.97 records that though served nobody appeared. Sixteen long years passed after this order was passed before petitioners applied to the Tribunal for recalling the order. Under normal circumstances, if the petitioners were not served with the notice of hearing, some delay in enquiring the progress in appeal and thereafter approaching the forum for recalling the order can well be understood - petitioners did not enquire about their own appeal before the Tribunal for more than 16 years. In the meantime, the entire record is lost. Documents, orders, notings, receipt, none of them would be available. At this stage, therefore to put heavy burden on the Registry of the Tribunal to establish that not only the notice of hearing was dispatched, the same was served would be too onerous a burden to be discharged. Petitioners cannot cast away their responsibility of pursuing their own appeal and at least inquiring about it from the Tribunal or their legal representative as to the progress of the matter. Right after 1988 when the pre-deposit order was passed, the petitioner never inquired about the progress in the appeal. More than 25 years thus passed before the petitioners started making inquiries. We would, therefore, go by the official record that the intimation had been dispatched to the petitioners and the Tribunal s recording that though served no one had appeared before the Tribunal on the date of hearing - Decided against assessee.

Summary

Issues: Challenge to orders passed by Customs, Excise and Service Tax Appellate Tribunal; Non-appearance leading to appeal dismissal; Application for recall of order; Application for rectification; Lack of notice of hearing; Delay in approaching the Tribunal; Burden of proof on the Tribunal; Responsibility of petitioners in pursuing appeal.

The judgment by the Gujarat High Court involved a challenge to orders passed by the Customs, Excise and Service Tax Appellate Tribunal (Tribunal) by the petitioners. The Tribunal had initially insisted on a pre-deposit condition for the petitioners' appeal, which they complied with. However, an order was passed on 27.10.97 dismissing the appeal for non-appearance, which the petitioners did not challenge for years. The petitioners claimed they were not aware of the hearing or the order passed, only becoming aware when the department sought dues in 2013. They subsequently filed applications for recall and rectification, which were dismissed by the Tribunal citing delay and lack of grounds for review.

Regarding the lack of notice of hearing, the petitioners argued that they were not served with the notice and were unaware of the dismissal of their appeal. The Tribunal's dismissal for default was contested, with the petitioners asserting that the appeal should have been decided on merits. The petitioners pointed to their Right to Information Act applications, revealing that the Tribunal claimed appeal papers were not traceable. The petitioners emphasized that the Tribunal should have recalled the ex parte order and erred in dismissing the appeal without considering the merits.

The Court, however, held that after such a long delay, reopening the issues was not feasible. The dispatch register indicated communication sent to the petitioners, and the Tribunal's order recorded non-appearance despite service. The Court noted the petitioners' prolonged inaction in pursuing their appeal, with over 25 years passing before inquiries were made. The burden of proof on the Tribunal to establish notice receipt after such a time lapse was deemed too onerous. The Court emphasized the petitioners' responsibility to monitor their appeal progress and concluded that, given the extended delay and lost records, the dismissal of the appeal was justified based on the official record of notice dispatch and non-appearance.

In conclusion, the Court dismissed the petition, emphasizing the importance of timely pursuit of legal matters and the burden of proof in establishing notice receipt after a significant lapse of time.