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TMI Blog2009 (6) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... eal and dispose of the same of merits. 3. The petitioner is manufacturing medicine falling under the Heading 3003.10 and 3003.20 as Patent & Proprietary Medicines and Generic Medicines, both dutiable and exempted respectively and claimed for home consumption as well as for export. Petitioner claimed the above classification based on affixing the label containing the logo on the medicines. It is also claimed that they are eligible to modvat credit as per the notifications and availed the modvat credit in respect of the inputs used in the manufacture of P&P medicines exported to Sri Lanka under AR.4 form and under bond. The Superintendent of Central Excise, Tambaram Range, issued show cause notices dated 1-4-1995, 30-10-1995 and 3-11-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent Tribunal and the same was numbered as E/1577/1999. The petitioner received a letter dated 24-11-2000 on 21-12-2000 from the Registry of the first respondent for filling additional data sheet to process the appeal. The petitioner also furnished additional data sheets on 15-2-2001 as required. Thereafter, the petitioner did not receive any communication from the first respondent for hearing of the appeal. However, Final Order No. 901/2006, dated 25-9-2006 [2007 (208) E.L.T. 318 (Tri. - Chennai)] was received by the petitioner on 20-10-2006 stating that the appeal was dismissed, i.e., without hearing the case of the petitioner. It is stated in the order that the appeal was decided on merits based on the arguments made by the departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further appeal before this Court under Section 35-G of the Central Excise Act, 1944, as the appeal was disposed of on merits. 7. I have considered the rival submissions of the learned counsel for the petitioner as well as the learned counsel for the respondent. 8. Admittedly the appeal was filed by the petitioner before the first respondent as provided under Section 35-B of the Central Excise Act, 1944, which is a statutory remedy. The Registry of the first respondent directed the petitioner to file additional data sheet, which was also complied with by the petitioner by filing additional data sheet on 15-2-2001. Section 35-C(1) of the Central Excise Act, 1944, clearly states that the parties shall be heard and orders passed. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion submitted for restoration of the appeal. The restoration application was rejected on the ground that the petitioner has got further appeal remedy to the appellate Court. When the facts are not in dispute with regard to the non-services of the notice of hearing of the appeal to the petitioner and the order was passed in the appeal on merits without hearing the petitioner/appellant, the application for restoration filed, is bound to be allowed even though order was passed on merits. 10. In the decision reported in 1996 (86) E.L.T. 472 (S.C.) : (1996) 6 SCC 92 (J.K. Synthetics Ltd. v. Collector of Central Excise) a similar issue arose with regard to the restoration of the appeal by CEGAT under Rule 21 of the CEGAT (Procedure) Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ends of justice. CEGAT has, therefore, the power to set aside an order passed ex parte against the respondent before it if it is found that the respondent had, for sufficient cause, been unable to appear. 7. It is for CEGAT to consider in every such case whether the respondent who applies for recall of the ex parte order against him had sufficient cause for remaining absent when it was passed and, if it is established to the satisfaction of CEGAT that there was sufficient cause, CEGAT must set aside the ex parte order, restore the appeal to its file and hear it afresh on merits. 8. On the facts of the present case, we think it proper to allow the appellants' application to CEGAT for setting aside the ex parte order against it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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