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TMI Blog1995 (7) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on 5-1-1993, Shri Balasubramanian, the learned Counsel was present in the Court and when the case was adjourned, he took the adjournment date as 9-2-1993 and went away. On 9-2-1993 when he came prepared to argue, the appeal on behalf of the appellant he was surprised to find that the appeal has been taken up and disposed of by the Tribunal on the previous day [1994 (71) E.L.T. 144 (Tri.)]. Shri Balasubramanian submitted that as a Counsel he was under the bona fide impression that the Tribunal had adjourned the case to 9-2-1993 and acted accordingly. But the record indicated that the case had been adjourned to 9-2-1993 instead of 8-2-1993. Therefore this is a case where there was no effective opportunity as envisaged under law given to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing the case in accordance with law. 3. We have considered the submissions made before us. In the present case, the Advocate himself has filed an Affidavit which would show as stated above that he was present to argue the appeal on 5-1-1993 and the Tribunal adjourned the case and took the adjournment date as 9-2-1993. The record of the Tribunal indicates the date as 8-2-1993. Since the Advocate was not available on 8-2-1993, the Tribunal disposed of the case on merits, keeping in mind the averments of the Affidavit filed by the Counsel on 9-2-1993 which otherwise raised are contravened to the Department and also having regard to the fact that the bona fide mistake on the part of the Counsel cannot be doubted we are inclined to think th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge, that for the reasons of the provisions of sub-section (1) of Section 254 of the Act itself, the opportunity of being heard, spoken of in that provision of the Act, was essentially part of the jurisdiction that the Tribunal has been given by the statute; and that when adequate and reasonable grounds for omission to appear at the hearing are made out to the satisfaction of the Tribunal, it is only a question before the Tribunal as to the adequacy of that opportunity of being heard which sub-section (1) of Section 254 enjoins to be given before the Tribunal is enabled to pass orders on the appeal. The appeal was therefore dismissed. The Kerala High Court also in dealing with the powers of the Tribunal for rehearing matters in use of inh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear in its ming that the provision under the sub-section in its true spirit had not been complied with in passing the ex- parte order. The power of setting aside an ex parte order to afford an opportunity of being heard to the aggrieved party is not the same as the power of review. The question of review ordinarily arises where the order impugned is vitiated on account of some mistake or error apparent on the fact of the record, or where there was failure to consider the material on record. The purpose of setting aside an ex parte order is to consider the whole matter afresh affording an opportunity of being heard to the respondent. When this distinction is borne in mind, there is no scope for the argument that because the Tribunal has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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