2014 (11) TMI 505 - AT - Service Tax

Modification of order - Order passed in assessee s absence - in the cause list published by CESTAT, appeal and stay application filed by the appellant did not figure - Held that - The notices are often issued few months in advance and at the time of issue of notice, there is no guarantee / certainty that there would a Bench on that date for hearing. That is why the cause list is published every week. Therefore, if an assessee finds that his case is not listed in the cause list published and does not appear for personal hearing, it is difficult to find it as assessee s fault. If an assessee has to ascertain from office of the Tribunal over phone whether their case is listed or not, the very purpose of publishing cause list in website is defeated. In our opinion, if an assessee has made efforts to verify the cause list and their case is not found listed, they cannot be found fault with. In this case, it is so. Therefore, we have to take a view that paragraph 6 of CESTAT s Circular applies to this case and the matter has to be considered afresh. - Decided in favour of assessee.

Summary

Issues:
1. Modification of previous orders regarding deposit amount.
2. Restoration of stay application.
3. Validity of an order passed without notice to the appellant.

Analysis:
1. The appellant sought modification of previous orders requiring a deposit of Rs. 30 lakhs within four weeks. The appellant filed a miscellaneous application seeking restoration of a stay application, which was disposed of as there was no question of restoration. The appellant then filed the present application for modification.

2. The appellant argued that the order dated 29.5.2013 was passed in their absence, as their appeal and stay application were not listed in the cause list. The appellant contended that the order passed without notice and presence should be considered null and void, requesting the Tribunal to reconsider their stay application afresh.

3. The respondent opposed the appellant's submission, emphasizing that notice had been issued to the appellant, making it their duty to appear for the hearing. The respondent suggested that the appellant should have verified from the Tribunal's office whether their case was listed, especially after receiving notice. However, the Tribunal was not entirely convinced by the respondent's arguments. The Tribunal noted that notices are often issued months in advance, and the cause list is published weekly, making it challenging for appellants to ascertain hearing dates. Therefore, the Tribunal held that if an appellant made efforts to verify the cause list and their case was not listed, they cannot be faulted. The Tribunal applied CESTAT's Circular and decided to consider the matter afresh, allowing the miscellaneous application and posting the stay application for a hearing on a specified date.