2019 (1) TMI 176 - HC - Central Excise

Principles of natural justice - opportunity of being heard not provided - condonation of delay in filing appeal - Whether in the absence of the appellant-assessee being heard by the Tribunal the final order dated 01.05.2017 is in accordance with the principles of natural justice? Held that - On a bare perusal of Paragraph No.2 of the impugned order, it is noted that department representative had appeared and was heard, but none appeared on behalf of the respondent , the respondent being the appellant herein. It is also noted that the appellant herein had filed cross objection dated 28.11.2003, being aggrieved by the order in Appeal No.100/2003 dated 29.04.2003. Both in the appeal filed by the department and in the cross objection filed by the assessee, there was no representation on behalf of the assessee. Consequently, the assessee has not been heard in the matter. In the absence of hearing the assessee, the impugned order has been passed. It is not forthcoming as to why the assessee did not appear before the Tribunal, it would not be necessary to go into the said reasons also. But what follows is the fact that the assessee was not heard by the Tribunal either in the appeal filed by the respondent-department or on the cross objections filed by the assessee. The matter is remanded to the Tribunal for a fresh adjudication in accordance with law after giving an opportunity to both parties - appeal allowed by way of remand.

Summary

Issues:
Delay in filing the appeal, violation of principles of natural justice by the Tribunal, condonation of delay, jurisdiction of the Tribunal, opportunity of being heard, substantial question of law regarding principles of natural justice.

Delay in filing the appeal:
The appellant sought condonation of a 306-day delay in filing the appeal, attributing it to operational issues and non-communication of the Tribunal's order. The appellant contended that the delay was unintentional and requested a remand to the Tribunal for a hearing opportunity. The standing counsel for the department opposed the condonation, arguing lack of satisfactory explanation. The Court considered the reasons for the delay and the appellant's right to be heard before the Tribunal, ultimately condoning the delay subject to a cost of ?25,000 to be paid to the Advocates' Association Library Fund.

Violation of principles of natural justice by the Tribunal:
The main contention was the absence of the appellant's representation during the Tribunal proceedings, leading to a final order without the appellant being heard. The appellant argued that the Tribunal lacked jurisdiction and the order was in violation of natural justice. The Court noted the absence of representation by the appellant in both the department's appeal and the appellant's cross-objection, setting aside the impugned order and remanding the matter to the Tribunal for fresh adjudication after providing an opportunity to both parties.

Condonation of delay:
The Court considered the appellant's reasons for the delay, emphasizing the appellant's right to be heard before the Tribunal. Despite the standing counsel's objection, the Court decided to condone the delay of 306 days, highlighting the importance of natural justice and the appellant's pursuit of a fair hearing. The Court imposed a cost of ?25,000 to be paid to the Advocates' Association Library Fund as a condition for the delay to be condoned.

Jurisdiction of the Tribunal and opportunity of being heard:
The appellant contended that the Tribunal lacked jurisdiction to adjudicate the dispute and sought an opportunity to present its case. The Court acknowledged the appellant's right to a fair hearing, emphasizing the significance of principles of natural justice. The Court directed both parties to appear before the Tribunal without separate notices and instructed the Tribunal to consider the appeal and cross-objection in accordance with the law, ensuring a speaking order after providing an opportunity to both sides.

Substantial question of law regarding principles of natural justice:
The Court admitted the appeal to consider the substantial question of law related to the absence of the appellant being heard by the Tribunal and the adherence to principles of natural justice. The judgment focused on the violation of natural justice principles due to the appellant's non-representation during the Tribunal proceedings, leading to the setting aside of the impugned order and a remand for fresh adjudication with an opportunity for both parties to be heard.