2016 (4) TMI 372 - AT - Central Excise

Restoration of appeal - Dismissed the appeal for non-prosecution by way of remand - Revenue argues that Tribunal has not dismissed the appeal but had ordered all the appeals are allowed by way of remand - Held that - the Tribunal has gone into merits of the case of the appeals and observed that the demand was proposed on the ground of clandestine removal of the goods and the contention of the Revenue is that the adjudicating authority had not considered the evidences in proper manner. In view of the said facts and circumstances, the Tribunal held that it is difficult to proceed in the matter and therefore, remanded the matter to the adjudicating authority to decide afresh on the grounds of appeals raised by the Revenue, after giving proper opportunity of hearing to the applicants. The Tribunal ordered that the appeals are allowed by way of remand. It is found that the Tribunal had gone into the issue and applied mind and had come to a decision. Therefore, the recalling of the order and restoring the appeals would amount to review of the earlier order of the Tribunal which would not be legal and proper. Also in the arguments of Revenue that the appeals are not dismissed and have been remanded with all issues open, and therefore, the same cannot be restored. - Decided against the appellant

Summary

Issues:
1. Dismissal of appeals for non-prosecution by the Tribunal.
2. Restoration of appeals based on non-appearance of respondents.
3. Interpretation of Tribunal's order dated 30.11.2015.
4. Application of legal precedents - J.K. Synthetics Limited, Viral Laminates Pvt. Limited, and Commissioner of Central Excise Belapur, Mumbai vs. RDC Concrete (India) Pvt. Limited.
5. Consideration of the Tribunal's decision and review of the order.

Analysis:
1. The primary issue in this case pertains to the dismissal of appeals for non-prosecution by the Tribunal. The applicants argued that non-appearance on a specific date should not lead to dismissal as they had appeared on earlier occasions. They contended that the Tribunal's observation regarding non-appearance and non-contestation of grounds by respondents was incorrect. The applicants sought restoration of the appeals citing legal precedents such as J.K. Synthetics Limited and Viral Laminates Pvt. Limited.

2. The respondents, represented by the Authorised Representative for Revenue, countered the applicant's argument by stating that the Tribunal's order did not dismiss the appeals but allowed them by way of remand. They emphasized that the Tribunal had considered the merits of the case before making the decision. Citing the case of Commissioner of Central Excise Belapur, Mumbai vs. RDC Concrete (India) Pvt. Limited, the respondents argued against the restoration of appeals as the order was based on a thorough review.

3. The Tribunal's order dated 30.11.2015 highlighted the non-appearance of respondents and the request for adjournment by one party. It noted the grounds of appeal raised by the Revenue regarding clandestine removal of goods and the alleged lack of proper consideration of evidence by the adjudicating authority. The Tribunal remanded the matter to the adjudicating authority for a fresh decision, emphasizing the need for proper hearing opportunities.

4. The Tribunal's detailed consideration of the case, including the grounds of appeal and the necessity for a fresh decision, indicated a thorough review of the matter. The Tribunal's decision to remand the case based on the merits and procedural requirements demonstrated a careful analysis, making it legally sound and not subject to restoration or review.

5. The application of legal precedents, including the recent decision in the case of RDC Concrete (India) Pvt. Limited, supported the Tribunal's approach in this case. The Tribunal's adherence to legal principles and avoidance of re-appreciating evidence or reconsidering earlier decisions aligned with the legal framework, leading to the dismissal of the ROA applications based on the soundness of the Tribunal's order.