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TMI Blog2010 (9) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... ar limitation - It is settled law that when a party files an application for recall of an final order, it is not only necessary for the party to justify the absence of the party on the day when the matter had proceeded ex parte, but should also disclose the grounds of challenge which could be said to have been omitted from consideration or not considered by the Tribunal which could have influenced its decision - As already pointed out above, while dealing with this aspect there is clear observation in the order dated 25th May, 2010 as to why we have considered the issue of limitation and it does not require further deliberation in this order - Application stands disposed of - E/1/2007 - 455/2010 - Dated:- 6-9-2010 - Justice R.M.S. Khandeparkar, P. Karthikeyan, JJ REPRESENTED BY : Ms. Sudha Koka, DR, for the Appellant. Shri Prakash Shah, Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President] . - Heard at length the advocate for the applicant and the Departmental Representative. 2. This is an application for recall of the final order dated 25th May, 2010 and restoration of the appeal. 3. The present application has been filed essen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sickness, being an advocate and therefore officer of the Court, should be accepted as the proof for his absence on that day. Further, placing reliance in the decision of the Delhi High Court in the matter of S.K. Gupta Anr. v. Commissioner, Sales Tax, New Delhi, reported in 1985-(ST2)-GJX-0075-DEL, of the Supreme Court in the matter of Commissioner of Central Excise, Chandigarh-II v. Bhalla Enterprises, reported in 2004 (173) E.L.T. 225 (S.C.), and of the Tribunal in the matter of National Conduit Pipe v. Commissioner of Central Excise, Chandigarh, reported in 2009 (246) E.L.T. 196, learned advocate submitted that, even though the provision of law does not permit to seek adjournment by sending a letter, once such a letter was sent and the same was not considered by the Tribunal that is a good ground for recall of the order passed by the Tribunal. In any case, the application/letter clearly discloses justifiable ground for the absence of the advocate on that day and, therefore, the application filed by the respondents deserves to be allowed. He further submitted that, in fact, the order dated 25th May, 2010 could not have been passed in the facts and circumstances of the case whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing fixed on 25-5-10. We will be highly obliged if the Personal Hearing will be arranged in the first week of June, 2010. Thanking you, Yours faithfully For Indo Vacuum Technologies Pvt. Ltd. Sd/- Authorised Signatory 8. The order dated 25th May, 2010, undoubtedly, discloses that, the said letter was not placed before the Bench while deciding the matter. The Tribunal s records, as they stand today, therefore, in relation to the hearing on 25th May, 2010 are concerned, disclose that the respondents and their advocate were absent when the matter was called out and in those circumstances the matter proceeded ex parte. At the same time, it is the contention of the respondents that the letter was sent on 24th May, 2010 seeking adjournment of the hearing fixed on 25th May, 2010. Undoubtedly, assuming that the said letter was presented to the registry on 24th May, 2010, it discloses the ground that the advocate for the respondents was not well and unable to attend the personal hearing fixed on 25th May, 2010. At the same time, it is undisputed fact that it was to the knowledge of the respondents, though it might have been subsequently acquired, that when the matter came up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter for adjournment was sent in relation to the matter before the Sales Tax Officer. That apart, the clear observation by the Hon ble High Court in relation to the said letter is that It stands proved on the record that the said communication dated May 2, 1980 stood delivered to the addressee, namely, the Sales Tax Officer, on May 3, 1980 . In other words, the letter, which was sent for adjournment, was, in fact, placed before the authority who was to hear the matter. Obviously, therefore, the authority was made aware of such application before the matter was disposed of by the authority, yet no order was passed in relation to the said letter prior to disposal of the case. It was in those circumstances the Delhi High Court observed that There is a clear non-application of mind and casual approach to the assessment . That is not the case in the matter in hand. Besides, the matter before the Tribunal was not at the original stage of assessment, whereas in S.K. Gupta s case (surpa) the matter was at the original stage of assessment before the Sales Tax Officer. Taking into consideration all those facts, the Delhi High Court has observed that, there was clear non-application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... JCDR. We have considered the miscellaneous application filed by the Jurisdictional Commissioner. We find that the appeal has been filed in the prescribed form EA-3. Appeal and the grounds of appeal have also been signed by the Committee of Commissioners. As such, the appeal filed is valid. However, the prescribed EA-3 form contains a verification clause which has not been signed by the official authorized to file the appeal. A such, the department is directed to file a fresh EA-3 form containing required verification clause duly signed by the authorized officer. As requested by the learned JCDR, 15 days time is granted for the purpose. Case adjourned to 23-10-09. 10. Plain reading of the said order would disclose that the Tribunal had not disposed of the ROA Application No. 04 of 2009 by the said order nor had restored the appeal by the said order, but by the said order the Tribunal had merely directed the Department to place on record fresh EA-3 form containing required verification clause duly signed by the authorized officer. That did not amount to the restoration of the appeal. 11. The contention that the Tribunal disposed of ROA Application No. 04 of 2009, without any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tacle to the Tribunal in disposing of the appeal on 25th May, 2010. The learned advocate for the respondents has also submitted that on merits the respondents cannot dispute the correctness of the order dated 25th May, 2010. He, however, has submitted that the issue regarding bar of limitation still remains to be considered. 13. As far as the point of limitation is concerned, it is to be noted that the application for restoration do not make any whisper about the same. As already pointed out, the application for recalling of the order dated 25th May, 2010 merely refers to the letter dated 24th May, 2010. The contention of the learned advocate is that, it is only after recall of the said order that the issue of limitation can be raised and gone into. It is settled law that when a party files an application for recall of an final order, it is not only necessary for the party to justify the absence of the party on the day when the matter had proceeded ex parte, but should also disclose the grounds of challenge which could be said to have been omitted from consideration or not considered by the Tribunal which could have influenced its decision. 14. In any case, the order dated 25th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of today, there were other issues raised by them relating to limitation and ownership which would need a determination by the Tribunal. The orders in all these appeals are therefore being passed separately. C.A. No. 5387/2003; Commissioner of Central Excise v. Fine Industries, C.A. No. 4979-84/2001; CCE v. Swadesh Industries and CSA. No. 5389-5396/2003; CCE v. Swadesh Industries. 8. These appeals are taken on board and appeals are allowed. Inasmuch as the respondent-assessees claim that they have raised the issue of limitation of demands and since there was no finding on the issue of limitation by the Tribunal, these appeals are remanded back to the Tribunal for a decision on the issue of limitation. C.A. No. 950/2004 : Commissioner of Central Excise, Chandigarh-II v. M/s. Bhalla Enterprises : 9. This appeal is allowed on merits. However the matter is remanded back to the Tribunal on the question of limitation and also with regard to the claim of the assessee that it was also the registered owner of the brand name/trade mark in question for the relevant period. C.A. No. 1872/2004 1877/2004 : CCE v. M/s. Prakash Gramodyog Samiti Ors. : 16. Apparently, the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essentially on the ground that, when the appeal came up for hearing on 25th May, 2010, the registry did not bring to the notice of the Bench that the respondents had filed an application dated 24th May, 2010 informing about non-availability of their advocate for hearing on 25th May, 2010 and, in those circumstances, in the absence of the advocate for the respondents, the matter proceeded ex parte and came to be disposed of finally accordingly. The fact that the non-appearance of the respondents on 25th May, 2010 was due to the circumstances mentioned in the said application was not brought to the notice of the Bench and, therefore, there is a justifiable cause for recall of the said order. 4. Perusal of the application does not disclose any other ground for recall of the final order passed on 25th May, 2010. In the circumstances, therefore, when the advocate for the respondents was asked, as to whether there was any ground on merits to assail the order dated 25th May, 2010, he submitted that, though the respondents have no case on merits, the fact that there was no suppression, as such, on the part of the respondents and on that ground there was no justification for invocation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are revealed from the records that originally under order dated 24th November, 2008 the appeal filed under the Department was dismissed for having not been properly filed. Thereafter the Department had filed an application for Restoration of Appeal being Application No. 04/2009. The same was allowed under order dated 8th October, 2009 and that too without notice to the respondents and, therefore, after serving copy of the said order, the respondents filed Misc. Application being Application No. 494 of 2009 for recall of the said order. In those circumstances, without considering the Misc. Application No. 494 of 2009 the Tribunal could not have disposed of the appeal on 25th May, 2010. 6. The Departmental Representative, on the other hand, submitted that, the appeal was sought to be adjourned on number of occasions by the respondents and in those circumstances when the matter came up for hearing on 25th May, 2010, in the absence of the respondents and their advocate without any sufficient cause being disclosed for the same, the Tribunal disposed of the same on merits and therefore there is no case for recall of the said order. 7. Perusal of the application, undoubtedly, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e up for hearing on 25th May, 2010, the Tribunal was not apprised of any such letter having been sent by the respondents. In those circumstances, it was obviously expected from the respondents to enclose the copy of such letter along with the application disclosing necessary details about the presentation of such application in the registry on 24th May, 2010. It is not known as to why the same was not disclosed in the application and why the respondents had to wait till the date of today s hearing to contend that the proof thereof could be verified from the inward register by verifying whether the same was entered at Serial No. 186 on 24th May, 2010 or not. Be that as it may, the ground disclosed in the letter is that, the advocate for the respondents was unwell and, therefore, could not attend the hearing on 25th May, 2010. It is to be noted that the letter was not under the signature of the advocate. It was sent by the party. In those circumstances, in the absence of any proof about the sickness of the advocate merely on statement of the party, even if the application was presented before the Tribunal on the very day, it could have been rejected for want of proof relating to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of mind by the authority. It is settled law that a decision delivered in the peculiar set of facts cannot be applied to a situation which arises in a totally different set of facts. It is not mere absence of application before the Tribunal on 25th May, 2010 that led to the passing of the order. Even assuming that the letter was placed before the Bench, it was certainly in the discretion of the Bench either to accept or reject the said letter and/or to adjourn the matter. As already observed above the letter was sent by the party and not by the advocate. There was no proof along with the letter about the sickness of the advocate. The contention of the learned advocate that he is making a statement today that he was sick on that particular day would not make any difference in the absence of proof of his sickness on 25th May, 2010 when the matter was heard and decided. We will have to see the matter in the context of the day on which the matter was taken up for hearing i.e. 25th May, 2010 and not what is claimed by or on behalf of the party today. Secondly, the points as to whether the advocate for the party was sick on a particular day and that, therefore, the party could not se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny intimation of the hearing in that regard to the respondents, is also not true and can be certainly said to be a statement totally false and contrary to the records. The records clearly disclose a Letter No. IVT/09/10 dated 22nd October, 2009 sent by the authorized signatory of the respondents addressed to the Tribunal on the letterhead of the respondents. The said letter reads thus : IVT/09/10 DATE : 22/10/09 TO, ASSISTANT REGISTRAR CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WTC 1ST FLOOR, FKCCI COMPLEX, KEMPEGOWDA ROAD BANGALORE-560009 Dear Sir, SUB : Your letter dated 8-10-09 REF : Misc. Order No. 527/2009 With reference to the above please note, we are in receipt of your letter on 22-10-09 morning. It is not possible for us to attend the Personal Hearing on 23-10-09 with such a short notice. Hence we request you to adjourn the P.H. and offer us suitable date to do the needful. We are also sorry to inform you that we did not receive any intimation letter for the Personal Hearing held on 7-10-09. Thanking you, Yours Truly, For Indo Vacuum Technologies Pvt. Ltd. (Erstwhile Indo Woo sung Vacuum Co. Pvt. Ltd.) Sd/- A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25th May, 2010 does refer to the issue of bar of limitation while holding thus : 25. As regards the bar of limitation, as already observed above, the adjudicating authority has on analysis of the material on record has arrived at the finding that the respondents could not bring anything on record which could reveal that the department had prior knowledge of use of brand name of another person by the respondents for the product manufactured by them. The said finding of fact has not been interfered with by the Commissioner (Appeals). Perusal of the records also do not disclose any justification for interference in the said finding. We are referring to this aspect because the respondents are not represented before us. The respondents have also not filed any cross objections. In the circumstances though we are not required to go into the said issue, since the respondents are not represented before us, we have also considered the said aspect of the matter. 26. Considering the view that we are taking in the matter, it is also not necessary to refer to other judgments relied upon by the learned DR though all those judgments squarely apply to the facts of the case in hand and support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Apex Court having found that the had not dealt with the issue of limitation had remanded the matter to the Tribunal. Obviously, the Tribunal being Court of facts has to deal with all these aspects. The issue of limitation is never a pure question of law, but always a mixed question of law and facts. It is essentially for the Court of facts to analyse the facts in relation to any issue of fact or mixed question of law and fact. If the issue regarding limitation is raised before the Tribunal, it is not necessary for the Tribunal to remand the matter to the Commissioner (Appeals) or to the adjudicating authority and the Tribunal itself is fully empowered to decide such issue. As already observed above in para 25 of the order dated 25th May, 2010, the Tribunal has duly considered the said issue. Very fact that the respondents had not been able to produce any evidence about the knowledge of the Department about the activities of the respondents which could have revealed any of the violation of the provisions of law, itself discloses the suppression of the fact and the same has been duly considered in the said order. 17. It was also sought to be contended on behalf of the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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