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TMI Blog2017 (5) TMI 659X X X X Extracts X X X X X X X X Extracts X X X X ..... order/order-in-original came to be passed by the Assistant Commissioner of Customs, Gujarat Pipavav Port Ltd., Pipavav (hereinafter referred to as the "adjudicating authority"), on 8.1.2017 denying the benefit of exemption notification No.21/2002 to the petitioner and charging the petitioner with customs duty at the rate of 15% and directing the petitioner to pay the differential duty amounting to Rs. 57,38,518/-. The petitioner challenged the order of the adjudicating authority before the Commissioner of Customs (Appeals), Ahmedabad, who, by an order dated 31.3.2007 dismissed the appeal. The petitioner carried the matter in further appeal before the Appellate Tribunal in Appeal No. C/353/2007. 3.1 It appears that in another instance, the petitioner had imported a second consignment of coking coal, a part whereof was sold to M/s. Maa Bhagwati Coke Pvt. Ltd. on high seas sale. On import, both the petitioner and the aforesaid company, filed bills of entry and claimed exemption contending that the ash content was lower than 12%. The claim of the petitioner was allowed and it was granted exemption, however, the claim of M/s. Maa Bhagwati Coke Pvt. Ltd. was rejected, resulting in an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has become functus officio and cannot entertain an application for restoration. It was submitted that the attention of the Appellate Tribunal was drawn to the decision of the Supreme Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise, 1996 (86) E.L.T. 472 (S.C.), which has been completely ignored by the Appellate Tribunal. Referring to the above decision, it was pointed out that the Supreme Court has held that if, in a given case, it is established that the respondent was unable to appear before it for no fault of his own, the ends of justice would clearly require that the ex parte order against him should be set aside. Not to do so on the ground of lack of power would be manifest injustice. It was submitted that the order dated 23.2.2016 passed by the Appellate Tribunal while deciding the appeal ex parte is based upon incorrect facts, namely that the Appellate Tribunal has recorded that none appeared for the petitioner on 1.9.2015, despite the fact that the learned advocate for the petitioner was in fact present before the Appellate Tribunal and that on that date, the appeal was listed at Serial No.12 and at the time of hearing, the colleague of the advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, urged that the impugned order dated 25.1.2017 deserves to be quashed and set aside and the application filed by the petitioner for recalling the earlier order dated 23.2.2016 deserves to be allowed. 5. On the other hand, Mr. Chintan Dave, learned senior standing counsel for the respondent reiterated the contents of the affidavit in reply filed on behalf of the respondents and adopted the findings recorded by the Appellate Tribunal and submitted that no case is made out so as to warrant interference. 6. A perusal of the impugned order dated 25.1.2017 reveals that what has weighed with the Appellate Tribunal while rejecting the application for recalling of the earlier order and restoring the appeal is that the record revealed that the learned advocate for the appellant was continuously not present on three occasions, i.e. on 1.9.2015, 18.11.2015 and 23.2.2016. According to the Appellate Tribunal, the continuous absence of the appellant and their representative during the hearing would not grant them any basic right of restoration of the appeal, especially so when the Bench of the Tribunal consisting of the President and the Member (Technical) had arrived at a reasoned decision v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ourselves. 9. The appeal is allowed. The order under appeal is set aside. The application of the appellant for recalling the order dated 31st August, 1987, passed by CEGAT exparte against it is allowed. The appeal (No.590/84C) before CEGAT is restored to its file and shall be heard and disposed of on merits." 8. Thus, the Supreme Court has clearly held that the Appellate Tribunal is clothed with express power under rule 41 of the CEGAT (Procedure) Rules (now called the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982) to make such order as is necessary to secure the ends of justice and, therefore, has 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. 9. Insofar as the other grounds on which the application has been rejected are concerned, one of the grounds is that the learned advocate for the petitioner had remained consistently absent, whereas, the learned advocate fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had arrived at a reasoned decision dated 23.2.2016, is therefore, not borne out from the record. 11. In the light of the law laid down by the Supreme Court in the case of J.K. Synthetics Ltd. v. Collector of Central Excise, (supra), wherein the Supreme Court has held that the fact that rule 21 does not expressly state that an order on an appeal heard and disposed of ex parte can be set aside on sufficient cause for the absence of the respondent being shown does not mean that CEGAT has no power to do so. Rule 41 gives CEGAT wide powers to make such orders or give such directions as might be necessary or expedient to give effect or in relation to its order or to prevent abuse of its process or, most importantly, to secure the ends of justice. The court has held that CEGAT is clothed with express power under rule 41 to make such order as is necessary to secure the ends of justice and, therefore, has 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. 12. Having regard to the averments made in the memorandum of petition as well as in the application filed before the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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