2015 (10) TMI 682 - HC - Central Excise

Restoration of appeals - Applications for restoration were dismissed on account of reporting no instructions by the counsel appearing for the appellants - Held that - appeals are liable to be restored as petitioners have serious contentions on merits. The dismissal for non-prosecution arises in extreme situation where parties continuously failed to prosecute appeals. Absolutely, there is no such finding in the matter that appellants were absent on all occasions. On mere absence of one or two occasions shall not deprive the appellants an opportunity to contest the impugned orders on merit. The petitioners also have explained delay in filing applications to restore the appeals. Though averments in the application to explain delay is not at all satisfactory, and there is a justification in observing so in the impugned orders by the Tribunal, however, interest of justice demands matter should be heard on merits. - Appeal restored.

Summary

Issues: Restoration of dismissed appeals due to non-prosecution and delay in filing application for restoration.

Issue 1: Restoration of dismissed appeals due to non-prosecution
The judgment addresses the dismissal of appeal Nos. 607 to 613 of 2007 by the Tribunal due to non-prosecution. The stay application in the appeals was dismissed on 21-12-2009 for non-compliance with statutory pre-deposit requirements, leading to the rejection of the appeals. The petitioners subsequently filed application Nos. 44 to 50 of 2012 seeking restoration of the appeals, which was dismissed by the impugned order Ext. P24. The Tribunal's decision was based on the counsel for the appellants reporting no instructions and a three-year delay in filing the application for restoration. The standing counsel argued against restoration, citing the availability of appellate remedy. However, the judge found no reason to deny restoration, especially when the matters were not decided on merits but dismissed due to default and lack of instructions from the counsel.

Issue 2: Delay in filing application for restoration
The judgment also delves into the delay in filing the application to restore the appeals. The petitioners explained the delay by stating that their lawyer from Ernakulam could not appear due to pre-occupation. While the judge acknowledged that the explanations for the delay were not entirely satisfactory, they emphasized that the interests of justice necessitated hearing the matter on merits. The judge noted that the dismissal for non-prosecution should occur in extreme situations where parties continuously fail to prosecute appeals, which was not the case here. The judge highlighted that the absence of the appellants on one or two occasions should not deprive them of the opportunity to contest the impugned orders on merit. Consequently, the judge set aside orders Exts. P19, P20, and P24, directing the Tribunal to restore appeal Nos. 607 to 613 of 2007 along with the stay application. The petitioners were instructed to appear before the Tribunal on a specified date for further proceedings, with a directive to dispose of the appeals expeditiously within four months, subject to any pre-deposit orders. Ultimately, the writ petition was disposed of in accordance with the above directions.