2014 (9) TMI 530 - HC - Central Excise

Ex parte order - Whether the Tribunal in the given facts and circumstances and in view of the written request for postponement of date on record, erred in proceeding ex parte and passing an order on merits - Held that - Tribunal was, in the peculiar facts and circumstances, not justified. The Tribunal could have placed the matter on any other date, but with clarification that it would not be postponed or adjourned further on any ground. Once the absence of the Advocate results in grave loss and serious prejudice to a litigant, then, the Tribunal should have, in the larger interest of justice, not passed any orders in the absence of the Advocate or Appellant. The amount of pre-deposit of ₹ 5 lacs is the direction issued after expressing an opinion on merits of the controversy. All this, in the absence of the Advocate in the given facts and circumstances, was uncalled for. Appellant pay costs quantified at ₹ 25,000 to the Respondents. The costs shall be paid within a period of two weeks from today - Decided in favour of Assessee

Summary

Issues:
Challenge to Tribunal's ex parte order for waiver of pre-deposit and stay application.

Analysis:
The appellant challenged the Tribunal's ex parte decision on the waiver of pre-deposit and stay application, arguing that a substantial question of law arose due to the Tribunal proceeding ex parte without considering the written request for postponement of the date. The appellant's advocate was not present on one occasion, leading to the Tribunal's order resulting in a miscarriage of justice. The Tribunal's approach was deemed unjustified in the circumstances, as it could have rescheduled the matter without further adjournments, considering the serious prejudice caused by the absence of the advocate. The Tribunal's direction for a pre-deposit of Rs. 5 lakhs was issued without the advocate's presence, which was considered uncalled for.

The Court found that the Tribunal erred in proceeding ex parte and passing an order on merits without sufficient justification. While the Court did not intend to disrupt the Tribunal's calendar, it emphasized the importance of advocates' presence on assigned dates without seeking adjournments. The impugned orders were quashed, with the appellant directed to pay costs of Rs. 25,000 to the respondents within two weeks. The matter was scheduled for a fresh hearing by the Tribunal, with a warning that non-appearance would result in upholding the earlier orders. If present, the Tribunal would reconsider the application and issue a fresh order without influence from previous findings, keeping all contentions open and subject to proof of payment of costs.

In conclusion, the Court disposed of the appeal, setting aside the Tribunal's orders and outlining the conditions for further proceedings. The judgment highlighted the importance of advocate presence, fair consideration of requests for postponement, and the avoidance of ex parte decisions to ensure justice and procedural fairness in legal proceedings.