2016 (4) TMI 107 - HC - Central Excise

Service of decisions, orders, summons, etc - Invoking provisions of Section 37C of the Central Excise Act - Held that - Tribunal has rightly observed that the petitioner has been regularly attending the proceedings of the Tribunal when the matter was listed on 9.7.2013, 16.8.2013, 17.10.2013 and 12.12.2013 but the matter was adjourned as the case did not reach for hearing. In these circumstances, it is clear that the present case is not one where the petitioner had repeatedly sought adjournment with a view to prolong the proceedings or to avoid hearing. Tribunal has rightly invoked the provisions of Section 37C of the Central Excise Act to presume that the petitioner was duly served. However, looking to the fact that the petitioner was diligently prosecuting the appeal and appearing before the appellate Tribunal on previous occasions, therefore, we are of the view that to ensure that the matter is heard and decided on merits after giving due opportunity of hearing to all concerned and with a view to do complete justice in the matter, the petition, filed by the petitioner is allowed and the impugned order is hereby set-aside subject to the petitioner depositing costs of ₹ 5000/- before the Tribunal.

Summary

Issues:
Petitioner's application for restoration of Appeal No. ST/672/2008 rejected.

Analysis:
The petitioner filed an appeal, registered as Appeal No. ST/672/2008, pending before the Customs, Excise and Service Tax Appellate Tribunal, New Delhi. The appeal was dismissed due to the petitioner's absence on 21.2.2014, leading to a subsequent application for restoration being rejected on 12.12.2014. The petitioner argued that the rejection was solely based on the issuance of a registered notice on 8.1.2014, which the petitioner claimed was not served upon him. The petitioner contended that the presumption of service made by the Tribunal was incorrect as he had no knowledge of the hearing date. The petitioner sought to set aside the impugned order and have an opportunity to present the appeal on its merits.

The respondents countered by asserting that the registered notice was duly sent to the petitioner, and as per Section 37C of the Central Excise Act, the Tribunal rightfully presumed service, dismissing the appeal. They claimed that the petitioner's attempt to delay proceedings due to ongoing complaints and inquiries regarding service tax evasion was evident in his absence at the hearing. The respondents argued that the Tribunal's decision was justified given the circumstances.

Upon considering the arguments, the Court noted that the petitioner had consistently attended previous proceedings on various dates. The Court acknowledged that the petitioner's non-appearance on the specified date was due to a lack of notice, contrary to the Tribunal's presumption of service. Despite invoking Section 37C, the Court recognized the petitioner's diligent pursuit of the appeal and decided to set aside the impugned order. However, the Court imposed a condition for the petitioner to deposit costs of Rs. 5000 before the Tribunal. The petitioner agreed to attend all future proceedings without seeking adjournments, ensuring a fair hearing for all parties involved.

In conclusion, the Court allowed the petition, directing the petitioner to appear before the appellate Tribunal on the scheduled date. The decision aimed to uphold the principles of justice and provide an opportunity for the appeal to be heard on its merits, emphasizing the importance of due process and fair representation in legal proceedings.