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TMI Blog2017 (10) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... ther before adjudicating authority or before this court - the appellant, in one way or the other, has protracted the proceedings, right from the year 1992, till date and on perusal of the application made before the authority for recalling the order, it would show that no sufficient cause was established for preventing the person from appearing before the authority. Without establishing sufficient cause for non-appearance before the authority, that too, when the appellant has filed a petition to recall the order when he all along, agitated the case before the authorities, his non-appearance before the Appellate Authority in his appeal, this Court, is not convinced with the reason given in the application for recalling the order - decided against appellant. - CMA. No. 2750 of 2017 - - - Dated:- 14-9-2017 - S. Manikumar And M. Dhandapani, JJ. For Appellant : Mr.B.Satish Sundar For Respondent : Mr. Pramod kumar Chopda JUDGMENT ( Judgment of the Court was delivered by M. Dhandapani., J. ) This Civil Miscellaneous Appeal is filed against the Order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai in Miscellanoues Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the appellant's firm viz., one A. Sivan filed several Writ Petitions and Writ Appeals before this Court and all those Writ Petitions and Writ Appeals were dismissed. Against the show cause notice, this court has also issued a direction to the appellant to participate in the adjudication proceedings. Thereafter, again the adjudication proceedings were initiated back to square on 16.11.2007. The adjudicating authority passed the Order-in-Original No.6842/2007, which in nutshell are as follows: 28. Principal Chief Conservator of Forest, Hyderabad, A.P. vide his letter reference No.37506/92 -V2 dt:05.08.92 clarified in response to an enquiry by the dept that no such certificate of origin as mentioned above was issued by them and further the signature appearing thereon is not of any of the Chief Conservators of Forest working in their dept. Further the Divisional Forest Officer, Rajampet, A.P. in his letter No.3611/92/E.4 dt:13.08.92 clarified that the permit in question is not a genuine one for the following reasons: (i)No Form II permit was issued by their office for transportation of sandalwood chips because sandalwood is not endemic in their division. (ii)The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... private lands or foreign territory . Sandalwood is a precious natural resource. To protect and preserve the natural resource and to curb illegal felling of sandalwood, the possession and movement is regulated by Statutory enactments and Rules. Rule 3 of Tamil Nadu Sandalwood Transit Rules, 1967 has been referred in the Show Cause Notice as under: Condition for import, export and movement No person shall import sandalwood into or export sandalwood from, or move sandalwood, within any place in the state unless such sandalwood is accompanied either by a permit referred to in Rule 4 or by a way permit referred to in rule 6 and unless such sandalwood bears the mark of the Government of Origin, as provided in rule 7 of the property made in respect of such sandalwood which has been duly registered in accordance with rule 7 . The above shows that the movement and export of sandalwood (which includes sandalwood chips also as per Rule 2 (iii) i bid) is subject to State Control and a valid permit is a statutory requirement. The fact that M/s.J.J.Trading Corporation manipulated fake certificate of origin only to overcome the above statutory requirements. Hence to my mind this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case as per the licence is M/s.J.J.Trading Corporation. Whereas the exporter's name declared in the shipping bill is M/s.Divya Impex Corporation, Hyderabad. The certificate of origin of the goods and the transport permit relating to the goods under export viz. Sandalwood chips are all in the name of M/s.Divya Impex Corporation. The validity of export sought to be made against the export licence issued in the name of M/s.J.J.Trading Corporation is therefore, called into question. This apart, it has already been established from the facts that the documents of origin and movement of the sandalwood chips sought to be exported in the name of M/s.Divya Impex Corporation being a fictitious concern. As such, there is no authentic right of possession for the export of the goods in the name of M/s.Divya Impex Corporation. Consequently M/s.J.J.Trading Corporation, claiming their right of export of the above goods on account of / through M/s.Divya Impex. Corporation hold no better right for such entitlement than M/s.Divya Impex themselves. The mere possession of a ETC licence in their name would not provide the permit for export in the above circumstances when the declared exporter wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e list of export is alleged and hence, they were confiscated. The Certificate of Origin of procurement of the goods produced by the appellant was fake and fabricated. That certificate shows that the buyer of the goods was one M/s.Divya Impex Corporation, Hyderabad, who procured the impugned goods from a private source, namely, Mr.R.S.Ramanujam, Kodur, Andhra Pradesh. The Certificate indicating the name of those persons was not issued by the Principal Chief Conservator of Forest, Hyderabad, Andhra Pradesh. The said certificate was fabricated by the appellant, to escape from the Customs Authorities in exporting the banned goods. Accordingly, the appeal was dismissed on merits and the confiscation was upheld and imposed penalty of ₹ 1,50,000/- on the appellant under Section 114 of the Customs Act. 8. Aggrieved by the said order, the appellant herein filed a restoration application and also a Miscellaneous Application under Rule 41 of the CESTAT Procedure Rules, 1982. The Appellate Tribunal, on 09.08.2016, dismissed the Miscellaneous Application on the ground that the Tribunal has already passed a detailed Order in Final Order No.40081/2015 on 28.01.2015 and held that any inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of hearing, due to sufficient cause and faced with an ex parte award, it was as if the party was vested with an award without notice of the proceedings. If sufficient cause was shown, which prevented a party from appearing, the Industrial Tribunal had the power to set aside the exparte award. The relevant portion of the case in the J.K. Synthetics Ltd., Vs. Collector of Central Excise, is extracted as follows: Therefore, even if respondent was not present when the appeal was called for hearing, would not absolve the Tribunal from deciding the appeal on merits on the basis of material on record. That in fact the Tribunal did. The decision taken by the Tribunal in the absence of the respondent is not an ex parte decision or decree as understood under the Code of Civil Procedure or in a Civil Court and if it is a decision on merits, we fail to see how we can review or set aside the same. Recalling the order passed on merits would in fact amount to setting aside or reviewing an order decided on merits. In doing so, the Tribunal would be exercising a power which is not vested in it by law. We do not think that in such a situation Rule 41 of CEGAT (Procedure) Rules, 1982 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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