2018 (6) TMI 309 - AT - Central Excise

Jurisdiction - Recall of order - whether the applicant had sufficient cause to seek restoration of appeal, which was disposed of by the bench on merits? - Held that - In Hon ble High Court of Rajasthan in the case of Kamdhenu Cement Ltd. 2013 (10) TMI 1296 - RAJASTHAN HIGH COURT and the Hon ble High Court of Punjab and Haryana in the case of Rajesh Kumar Gupta 2015 (9) TMI 626 - PUNJAB AND HARYANA HIGH COURT wherein inherent power to recall the orders of the Tribunal has been affirmed - this Bench has power to recall the order dated 28.07.2017. Time Limitation - application for restoration of appeal has been filed beyond the period of three months - Held that - Though the order of the Tribunal was pronounced in open court on 28.07.2017, the same was dispatched from the Registry on 02.08.2017 and the applicant being a resident of Ichalkaranji in Kolhapur District, may have received the said order after 5 days; on this presumption, the application for ROA filed by the applicant on 09.11.2017 cannot be considered as time barred. The final order dated 28.07.2017 of the Tribunal is recalled and the appeal is restored to its original number with direction to the Registry to list the appeal for final disposal in due course - application allowed.

Summary

Issues involved: Restoration of appeal due to non-appearance, consideration of sufficient cause, timeliness of application

The judgment involves an application filed for the restoration of appeal No. E/26/2009, which was listed for hearing but the appellant did not appear. The Tribunal set aside the impugned order and allowed the appeal of the Revenue. The applicant filed for restoration, claiming the notice of hearing was sent to the old address. The Consultant argued that the new address was communicated to the Registry via email. The Revenue argued that the application lacked merit as the appellant did not attend the hearing despite being informed. The Tribunal considered the submissions and found that the appeal was filed by Revenue against an order-in-appeal that was challenged. The bench inquired about sufficient cause for restoration, citing legal precedents like J.K. Synthetic Ltd. v. CCE and cases from high courts. The Tribunal held that it had the power to recall the order and considered the timeliness of the application, concluding that it was not time-barred. The Tribunal found that the appellant had reasonable cause for non-appearance due to the notice being sent to the old address. Consequently, the final order was recalled, and the appeal was restored for final disposal.

In the judgment, the issues of restoration of appeal due to non-appearance, consideration of sufficient cause, and the timeliness of the application were thoroughly analyzed. The Tribunal scrutinized the circumstances leading to the non-appearance of the appellant, the communication of the new address to the Registry, and the legal precedents supporting the recall of ex-parte orders. The Tribunal referenced specific paragraphs from legal cases to justify its decision and emphasized the importance of establishing sufficient cause for non-appearance. The timeliness of the application was also a critical aspect considered, with the Tribunal determining that the application was not time-barred based on the circumstances of the case. Overall, the judgment provided a detailed analysis of the issues involved, ensuring a fair and just decision based on legal principles and precedents.