2019 (2) TMI 1554 - AT - Central Excise

Restoration of appeal - order was disposed off, though not without consideration of the grounds of appeal, but without the applicant having been placed on notice that the adjourned hearing was scheduled for 22nd January 2018 - Held that - Tribunal had passed the order on merits despite the absence of any representation of the appellant. These are not merits that should go into. However, it is also on record that no notice was issued for the hearing and that the present deponent is employee of the appellant who, admittedly, was present in court on the scheduled dates in November 2017 and December 2017. In the docket sheet, we find that the adjournment has been recorded on a rubber stamp template with blanks that have been filled in. It is a convention that dates of the next hearing in appeals, that are called out in seriatum and adjourned, are ordered by the bench in their own hand and also by their own pen which is lacking in the present instance implying that these were noted owing to, and after conclusion of time of sitting - it is not possible for us to firmly conclude that the direction not to issue notice was an order of the bench and that the adjournment was publicly ordered in court. In a situation such as this, fraught with even an iota of doubt, it is our bounden obligation to the presiding deity of this and every court, that invisible, but undoubtedly abiding, venerable lady in a blind fold and armed with a sword in her left hand, that the balance of the scales in her right hand should never be allowed to teeter. It would again, therefore, be in the interest of justice for the matter not be placed before a bench comprising either of us, severally or jointly, and lest there be any whisper that this entire exercise is mere lip service, we also direct that erstwhile order of the Tribunal be placed in a sealed cover in this file by Registry before it is placed before the appropriate bench, with due notice, for fresh hearing and disposal - application for restoration of appeal allowed.

Summary

Issues: Restoration of appeal due to lack of notice and procedural irregularities

Issue 1: Restoration of appeal due to lack of notice
The application sought restoration of appeal no. E/460/2008 on the grounds that the order dated 11th May 2018 was disposed of without the applicant being notified about the adjourned hearing scheduled for 22nd January 2018. The Learned Authorised Representative opposed the restoration, arguing that allowing such restoration would set a precedent leading to numerous claims against ex-parte disposals permissible under the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1992. The affidavit attached to the application was also contested for lacking justifiable cause, and references were made to legal precedents to argue against the restoration.

Issue 2: Procedural irregularities and doubts
The Tribunal acknowledged that no notice was issued to the appellant, as evidenced by the record showing an endorsement of 'no notice' in the docket sheet. The Tribunal examined the events leading to the adjournment and noted discrepancies in the affidavit regarding the deponent's actions and the lack of a justifiable cause for restoration. The Tribunal expressed concerns about the veracity of the events narrated in the affidavit and emphasized the importance of diligence expected from an authorized representative. References were made to legal judgments to highlight the limits beyond which cause for restoration does not suffice.

Issue 3: Decision for restoration and fresh hearing
After thorough examination of the records and procedural irregularities, the Tribunal concluded that the appeal should be restored. The Tribunal highlighted the importance of ensuring justice and fairness in the legal process, especially when dealing with appeals against the State. To uphold the integrity of the judicial system and serve the cause of justice, the Tribunal decided that the appeal should be heard afresh by a different bench to avoid any perception of bias or procedural lapses. The Tribunal directed the erstwhile order to be placed in a sealed cover before the appropriate bench for fresh hearing and disposal, ensuring transparency and adherence to due process.

This detailed analysis of the judgment highlights the issues related to the restoration of appeal due to lack of notice and procedural irregularities, the examination of legal precedents, concerns about the veracity of events, and the decision to hear the appeal afresh to uphold justice and fairness in the legal process.