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TMI Blog2017 (5) TMI 1139X X X X Extracts X X X X X X X X Extracts X X X X ..... al Civil Application No. 8404 of 2016 - - - Dated:- 5-12-2016 - Harsha Devani And A. S. Supehia, JJ. Mr Paresh V Sheth, Advocate for the Petitioner Jaimin A Gandhi, Standing Counsel for the Respondent JUDGMENT ( Per : Honourable Ms. Justice Harsha Devani ) 1. Rule. Mr. Jaimin Gandhi, learned standing counsel waives service of notice of rule on behalf of the respondents No.2 to 4. 2. Having regard to the controversy involved in the present case which lies in a very narrow compass, with the consent of the learned advocates for the respective parties, the matter was taken up for final hearing today. 3. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the orders dated 30th November, 2015 and 1st April, 2016 passed by the Customs, Excise and Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal ). 4. The facts giving rise to the present petition are that against an Order-in-Original dated 30th March, 2007, the third respondent herein preferred an appeal before the Tribunal. It is the case of the petitioner that upon service of the said appeal, the petitioner filed cross-objections raising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th, learned advocate for the petitioner assailed the impugned orders by submitting that in the order whereby the Tribunal has remanded the matter to the adjudicating authority, the Tribunal has proceeded on the basis of an incorrect finding of fact, namely that, the petitioner was not appearing before the Bench and not contesting the grounds of appeal of the revenue on merits. It was pointed out that on the earlier occasion, the learned advocate had remained present before the Tribunal and even advanced submissions and had also submitted cross-objections together with the relevant case law. It was submitted that, therefore, the finding recorded by the Tribunal that the grounds of appeal were not contested is factually incorrect. Moreover, the petitioner was represented before the Tribunal on earlier occasions and that it was only on 30th November, 2015, that the learned advocate representing the petitioner was not in a position to remain present and in respect thereof, an application for adjournment had been made. Referring to the order dated 1st April, 2016 passed by the Tribunal on the restoration application, it was submitted that the Tribunal has observed that in the previous o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned orders passed by the Tribunal. 10. From the facts as emerging from the record, it is evident that the appeal preferred by the Revenue was fixed for hearing on 27th April, 2015 and was adjourned to 8th June, 2015, but due to non-availability of the Bench, it was adjourned and was fixed for hearing on 6th July, 2015. On 6th July, 2015, the learned advocate for the petitioner appeared and conducted the matter but the same came to be adjourned to 29th September, 2015 on which date also, the learned advocate appeared and submitted a brief note on the case as also a paper book containing case law. However, the matter was again adjourned to 30th November, 2015. On 30th November, 2015, since due to some unavoidable circumstances, the learned advocate for the petitioner was not in a position to remain present, a specific request letter for postponement of the hearing with a request to allow the learned advocate to appeal on 7th December, 2015 was filed by him mentioning therein Appeal No.E/841 to 854/07-DB. However, on 30th November, 2015, the Tribunal proceeded to pass an order in the following terms:- These appeals are arising out of a common order and therefore, all are taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of remand and sought restoration of the Appeal No.E/841-842/2007 to its original number. The Tribunal, by the impugned order dated 1st April, 2016, rejected the application for recalling the earlier order by observing that the Tribunal had gone into the issue and applied its mind and had come to a decision and that, therefore, recalling of the order and restoring the appeals would amount to review of the earlier order of the Tribunal which would not be legal and proper. Thus, in effect and substance, the Tribunal has come to the conclusion that the application filed by the petitioner would be in the nature of a review application and that the Tribunal having decided the appeal on merits, it would amount to the Tribunal s reviewing its earlier order. While doing so, the Tribunal has also placed reliance upon the decision of the Supreme Court in the case of RDC Concrete (India) Pvt. Ltd. (supra) for the proposition that while exercising powers under section 35C(2), it is not permissible for the Tribunal to re-appreciate the evidence and reconsider its legal view taken earlier in pursuance of a rectification application. 13. In the present case, the application filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matter. As discussed earlier, the said finding of the Tribunal is factually incorrect, inasmuch as, the petitioner had put in appearance through the learned advocate and had contested the appeal and had also filed cross-objections. In the order dated 1st April, 2016, the Tribunal has, therefore, further arrived at an incorrect finding of fact that the Tribunal in the order dated 30th November, 2015 had gone into the merits of the case of the appeals. It is based upon such incorrect finding of fact that the Tribunal has held that the application cannot be entertained as it would amount to review of the earlier order of the Tribunal. As noticed hereinabove, the order dated 30th November, 2015 of the Tribunal was an ex parte order which has been passed by recording incorrect findings of fact. On behalf of the petitioner (original respondent), the learned advocate had made an application for adjournment. The Tribunal, while proceeding with the hearing of the appeal, has relied upon a statement of the learned counsel for the Revenue that on earlier occasions also, adjournments were sought which also does not appear to be supported by the record, which clearly indicates that on the ea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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